and plaintiffs received from appellant and his assigns $1,250 for the work. A tender of a deed by plaintiffs was found, which tender was refused because of the invalidity of the title, and it appears from the findings that plaintiffs had no title to one-half the ground included in the location. But the court finds that the money expended by appellant and his assignors was expended solely to enable the vendees to exercise their option, and that the value of the mining location was not at all enhanced thereby. This being so, of course, on general principles, appellant could not recover for the improvements. They were of no value. Appellant concedes this, but argues that, as the contract required the expenditure in sinking the shaft, plaintiffs are estopped from denying that it was an improvement, and, at all events, must repay the amount as a part of the purchase price advanced to them. But the purchasers agreed to make this expenditure for the option; and that they had. It was a pledge of good faith, and a reasonable requirement, that for the privilege they should proceed to exploit the mine. The court failed to find that the proposed vendees made a tender of the purchase money, or in any way manifested a desire to complete the purchase. It was not shown that the prospecting done showed that the location was of any value whatever. Waiving all question as to the form of the action, perhaps, if the mine had been shown to be valuable, worth more than $6,000,-and had appellant shown that he and his assignors were desirous of completing the purchase, and were prevented by failure of title, the amount expended in prospecting might have been recovered as damages. But, if the mine proved to be valueless, or for any reason the appellant did not desire to purchase even if a good title could be had, it was immaterial to him whether there was title or not. The judgment is modified by striking out the part charging costs to appellant, and, as modified, it is affirmed.

SAN FRANCISCO PAVING CO. v. BATES et al. (S. F. 2,597.)

(Supreme Court of California. Aug. 19, 1901.) MUNICIPAL CORPORATIONS-STREET ASSESS

MENTS-CONSTITUTIONAL LAW-REGU-
LARITY-BURDEN OF PROOF.

1. The California street assessment law is not repugnant to Const. U. S. Amend. 14, and void, because the expense of the street work is to be assessed in proportion to the frontage of the lots.

2. Under the statute a street assessment and other documents connected therewith are prima facie evidence of its regularity and correctness and of the prior proceedings: hence when they are introduced in evidence the defendant contesting such assessment has the burden of establishing the invalidity or irregularity of the proceedings.

In bank. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Action by the San Francisco Paving Company against George E. Bates and others. From a judgment for plaintiff, defendants appeal. Affirmed. 、

Freeman & Bates and Mastick, Van Fleet & Mastick, for appellants. J. C. Bates, for respondent.

MCFARLAND, J. This is an appeal by defendants from a judgment in favor of plaintiff in a street assessment case. The main point made by appellants is that our street assessment law is void because repugnant to the fourteenth amendment of the federal constitution, in that the expense of the street work is to be assessed in proportion to the frontage of the lots; and in support of this contention they rely on the case of Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443. But that point was elaborately considered by this court in Hadley v. Dague, 130 Cal. 207, 62 Pac. 500, and decided adversely to appellants' contention. The conclusion there reached has been approved in subsequent cases (see Banaz v. Smith [Cal.] 65 Pac. 309); and, although invited by appellants to overrule that case, we decline to do so, as we are satisfied with it as a final declaration of the law on the subject.

The

The only other point made for reversal is that the assessment was void because there was no bid or proposal on the part of respondent to do the work in question. bill of exceptions merely shows that the respondent introduced the assessment, warrant, certificate of the engineer, diagram, etc., "and thereupon the defendants read in evidence the paper writing, a copy of which is set forth in the second finding of the court herein, and no other evidence was given or offered by either party." The paper writing referred to is the bid in question; and the only objection to it is that it was signed, "San Francisco Paving Co., A. J. Raisch, Secty.," and there was no showing that the secretary was authorized to act in the premises for the respondent. But, assuming that appellants are in a position to make this objection, and that the subsequent ratification of the act by respondent was not, in any event, sufficient, it is enough to say, in the language of this court in Paving Co. v. Mowbray, 127 Cal. 3, 59 Pac. 205, that "the assessment and other documents connected therewith are made by the statute prima facie evidence of its regularity and correctness, and of the prior proceedings and acts of the city council, and their introduction in evidence by the plaintiff threw upon defendant the burden of establishing the contrary.” See, also, Improvement Co. v. Reynolds, 123 Cal. S8, 55 Pac. 802; Williams v. Bergin, 129 Cal. 461, 62 Pac. 59. In the case at bar ap.

pellants offered no evidence showing the invalidity or irregularity of the act of the board in accepting the bid; there may have been ample proof before it that the bid was authorized by the respondent. The judgment is affirmed.

We concur:

VAN DYKE, J.; HARRISON, J.; GAROUTTE, J.; TEMPLE, J.; HENSHAW, J.

of its conditions, signed by the defendant. The effect of the bond is alleged in the complaint, and a copy attached, and it is alleged and found that, pending the defendant's occupation of the land under the agreement, the defendant "placed upon said mining claim, as permanent improvements thereon, permanently affixed thereto, a certain build. ing, and in said building and on said mining claim placed the following described mining machinery and fixtures" (describing it); and

Where a party enters on certain premises under a bond executed to him by the owner, conditioned for the execution of a conveyance of the premises at a certain time to such party, provided he should have paid a certain sum, and, in the event of failure to pay such sum, the property, and all improvements thereon, to revert to such owner, on such party's failure to pay the sum at the date fixed, action may be brought against him for the possession of improvements erected by him which he has removed, or for their value, without an offer or tender to convey.

Department 2. Appeal from superior court, Shasta county; Edward Sweeny, Judge.

Action by A. J. Cook against Frank R. Enright. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Jackson Hatch and Garter, Dozier & Wells, for appellant. Reid & Bartlett and Bell & Barber, for respondent.

PER CURIAM. The plaintiff recovered judgment in the court below for certain mining permanent improvements and machinery removed from the plaintiff's premises, or its value, etc. The defendant appeals from the judgment. The case, as presented by the complaint and findings, is as follows: The plaintiff was the owner of the mining claim described in the complaint from which the machinery was removed. The defendant entered on the premises under a bond executed to him by plaintiff August 25, 1896, in the sum of $10,000, conditioned for the execution of a conveyance of the premises to defendant on the 25th day of February, 1898, provided the latter should have paid to the former the sum of $10,000. It was also provided in the contract that the defendant should "have the right to the immediate possession of the premises, and to work the mine"; and that, "in the event of his failure to pay the said sum of $10,000, at the time above mentioned, the said mining property and premises, together with all the improvements thereon, shall revert to and remain the property of the party of the first part, and then this obligation to be void." Indorsed on the bond is a written acceptance

manently attached and affixed to said mining claim." It is found "that said defendant did not, at the time agreed upon, pay said $10,000, or any part thereof, nor has he at any time since said date, or at all, paid the same, or any part thereof, or offered to pay the same." The machinery, which is alleged to be of the value of $4,200, was removed by defendant, and the prayer of the complaint is for its possession or value. No affirmative defense is set up by the defendant in his answer.

The only point made by appellant's counsel is that the plaintiff's alleged right to the machinery is based on the contract, and not on his previous ownership of the land, and that, in order to maintain his action, an offer or tender to convey was necessary on his part. This point is not tenable. This is not a case of mutual and dependent covenants, as where one is to convey, and the other to purchase and pay the purchase price. In the case at bar the defendant was under no obligation to purchase; he merely had an option to do so within the time prescribed. A tender of a deed was not necessary to put him in default. Under the terms of the contract, his rights had ceased to exist; and, in the absence of any equitable claim or offer to perform, he presents no defense to the action. In deciding this appeal, we confine our attention solely to the position taken by appellant. The judgment appealed from is affirmed.

(6 Cal. Unrep. 777)

GARDNER v. STARE et al. (L. A. 993.) (Supreme Court of California. Aug. 14, 1901.) NEW TRIAL-DENIAL APPEAL-DISMISSAL MOTION-GROUNDS-NOTICE TO PARTIES.

1. A motion to dismiss an appeal from an order denying a new trial because such motion was not served on all the parties who would have been adversely affected by the granting of the motion will not be considered, since it involves the merits of the appeal and an examination of the record.

2. Where, in an action concerning the separate property of a wife, whose husband defaulted, it appears that pending a motion for a new trial such wife died, whereupon all parties consented to the substitution of her administrator, and notice of appeal was served on him, a motion to dismiss the appeal on the ground that such husband and wife had not been served with notice of the appeal is of no avail.

In bank. Appeal from superior court, Los Angeles county; M. T. Allen, Judge.

Action by William Gardner against Catherine Stare and others. From a judgment in favor of plaintiff, and an order denying a new trial, Adeline Johnson 'appeals. Plaintiff moves for a dismissal of the appeal. Motion denied.

C. N. Wilson and Leslie R. Hewitt, for appellant. Dunnigan & Dunnigan, Cole & Cole, Fred. L. Wood, Graves, O'Melveny & Shantland, and Goodrich & McCutchen, for respondents.

BEATTY, C. J. This is a motion to dis miss an appeal from an order denying a new trial. The grounds of the motion are: First, that the notice of appeal was not served on parties who would be adversely affected by a reversal of the judgment; second, that the notice of motion for a new trial was not served upon all the parties who would have been adversely affected by the granting of

the motion.

The second ground of the motion involves the merits of the appeal and an examination of the record, and is therefore not to be considered on a motion to dismiss. It relates to matters arising prior to the order appealed from. Ditch Co. v. Bachtold, 109 Cal. 111, 41 Pac. 813; In re Ryer's Estate, 110 Cal. 559, 42 Pac. 1082.

The first ground of the motion is answered by an affidavit showing a sufficient service of the notice of appeal as to the parties named in the motion. The objection was that Catherine Stare and John Stare, her husband, had not been served. The record shows that the action concerned the separate property of the wife, and that John Stare never had any interest in the litigation. He made default, and the judgment does not affect him in any way. It is further shown by certified copy of stipulation of the parties, and by affidavit of appellant's attorney, that Catherine Stare died pending the motion for new trial, that all parties consented to the substitution of her administrator, and that the notice of appeal was served upon the administrator. The motion is denied.

We concur: MCFARLAND, J.; HARRISON, J.; VAN DYKE, J.; HENSHAW, J.

(134 Cal. 31)

INTEREST

REDEMPTION

VACAEXPIRA

TAYLOR v. ELLENBERGER. (S. F. 2,476.) (Supreme Court of California. Aug. 16, 1901.) MORTGAGES FORECLOSURE — SALE TION TION OF TIME-WRIT OF ASSISTANCE. 1. Refusal to vacate a sale of mortgaged premises regularly made in pursuance of a decree is not error.

2. It is not error to issue a writ of assistance to place a purchaser at a foreclosure in possession of the mortgaged premises after the expiration of the time for redemption.

3. Certain mortgages were foreclosed. On appeal the judgment was ordered modified by adjudicating separately the amount secured by each mortgage. The court below thereupon

added interest at 8 per cent. to the amount borne by the note down to the date when the decree was modified, and failed to apportion the amounts due on the separate mortgages at the date of the decree, or to credit the amount secured on the foreclosure of one of the mortgages, and to set forth the deficiency judgment as of the date of the return of the sale. Held, that computing interest on the total amount of the mortgage debt, without first crediting the proceeds of the sale, was error.

4. Where a mortgage note bore 8 per cent. interest, the rate stopped at the date of a decree in foreclosure, after which the decree bore only 7 per cent. simple interest.

In bank. For opinion in department, see 65 Pac. 832. Modified.

BEATTY, C. J. Upon a former appeal this case was remanded, with directions to modify the judgment by adjudicating separately the amounts separately secured by the realestate and personal property mortgages, and by ordering separate sales for the purpose of a proper application of the proceeds, and by deducting a certain sum erroneously found due on account of insurance. 128 Cal. 411, 60 Pac. 1034. The present appeals are: First, from an order denying defendant's motion to set aside the sale of real property which had been duly made in pursuance of the original decree; second, from the judgment as modified; and, third, from an order for a writ of assistance.

There was no error in refusing to vacate the sale of the real property which had been regularly made in pursuance of the decree. Nor was there any error in issuing the writ of assistance to place the purchaser at the foreclosure sale in possession of the mortgaged premises after the time for redemption had expired. Those orders are therefore affirmed.

But the modified judgment is erroneous and excessive. Instead of making a proper apportionment of the amounts separately due on the different mortgages at the date of the original decree, and crediting the amount found to be secured by the real-estate mortgage with the net proceeds of the sale of the mortgaged premises, and then entering the proper deficiency judgment as of the date of the return of the sale, the court, for the purpose of ascertaining the amount due, went back to the date when the mortgagor made default in the payment of interest, and added to the principal of his debt interest at the conventional rate down to the date of the modified decree. This was erroneous, for more reasons than one. The rate of interest stipulated in the notes was 8 per cent. per annum, compounded quarterly, and that rate stopped at the date of the original decree, after which the judgment bore only 7 per cent. simple interest. Besides the excess resulting from this excessive rate at which the interest was computed, a still larger excess in the judgment results from the neglect to credit the proceeds of the foreclosure sale which took place nearly a year before the date of the modified judgment. The re

sult of this error is that the defendant has been charged with interest upon about $2,400 at 8 per cent., compounded quarterly, for 11 months after it was paid. For these reasons, the cause must be again remanded for a proper modification of the judgment. In making this modification the conventional rate of interest is to be allowed only to the date of the original decree. After that till the date of the respective sales the sums found to be secured on the separate mortgages bear interest at 7 per cent., and are to be credited as of the dates of the sales with the net proceeds of the sales, after deducting the accruing costs and expenses. These deductions made, the proper deficiencies will be ascertained. The attorney's fee for foreclosing the chattel mortgage cannot exceed $66.55, and it is to be understood that the deduction of $20.05 on account of insurance is still to be made as originally directed. It is ordered that the cause be remanded to the trial court, with directions to modify the judgment as above indicated.

TESTATOR-INSTRUCTIONS.

1. When an appeal from a judgment and from an order denying a new trial is not taken within the time prescribed for appealing from the judgment, that branch of the appeal relating to the judgment cannot be considered.

2. Where, by agreement of counsel, special issues in the form of questions to be answered, and covering all the material facts, are submitted to, and answered by, the jury, and signed by the foreman, such questions and answers constituted a "special verdict," as defined by Code Civ. Proc. $624, and the signing is sufficient, under section 618.

3. Under Code Civ. Proc. § 1870, subd. 10, providing that an intimate acquaintance may state his opinion respecting the mental sanity of a person, the reason for the opinion being given, it is not error to permit a witness, shown to have been an intimate acquaintance of a testator, to state his opinion as to testator's mental sanity.

4. Where witnesses are shown to have been more or less intimate with a deceased testator, the court, in its discretion, may permit them to testify as to whether testator appeared to them rational or irrational.

5. Where the contestant of the probate of a will submits 21 instructions for the jury, of which 19 are given, and proponent 60, of which 23 are given, if, on the whole, they are fair and free from legal objection the verdict should not be disturbed.

6. The practice of loading down a case with innumerable instructions for the jury condemn

ed.

Department 1. Appeal from superior court, Yolo county; E. E. Gaddis, Judge.

Appeal from judgment admitting to probate the will of William Edwin Keithley, and

from order denying contestant's motion for a new trial. Order affirmed. Appeal from judgment dismissed.

R. Clark, for appellant. Arthur C. Huhston, for respondent.

VAN DYKE, J. The appeal in this case is from the judgment entered on the 5th day of March, 1900, admitting the will to probate in favor of proponent, and also from the order denying contestant's motion for a new trial. The appeal from the judgment not having been taken within time, that branch of the appeal cannot be considered.

Many alleged errors are assigned in the motion for a new trial, but in the argument of appellant's counsel on the appeal denying said motion stress is laid principally upon three matters alleged as error. These are: (1) That the special verdict has no validity from the fact it was not signed by the jury or its foreman; (2) errors occurring in the introduction of testimony; (3) certain instructions given at the request of proponent.

1. At the close of the trial contestant's attorney submitted certain special issues, which were agreed to by proponent, and submitted by the court to the jury, "whereupon (as the record recites) the jury retired to consider the said verdict, and were afterwards returned into court with the verdict in the manner following: "Verdicts and Findings of the Jury. Was W. E. Keithley on September 1, 1899, at the time of the making of the will in contest, of sound and disposing mind? Answer: Yes. Did W. E. Keithley declare to G. W. Dufficey that the will in contest was his will at the time he signed his name thereto? Answer: Yes. Did W. E. Keith

ley declare to Annie G. McDonald that the

will in contest was his will at the time he signed his name thereto? Answer: Yes. Did W. E. Keithley request G. W. Dufficey to sign his name to the will in contest as a witness? Answer: Yes. Did W. E. Keithley request Annie G. McDonald to sign her name to the will in contest as a witness thereto? Answer: Yes. Did G. W. Dufficey sign the will in contest as a witness thereto in the presence of W. E. Keithley? Answer: Yes. Did Annie G. McDonald sign the will in contest as a witness thereto in the presence of W. E. Keithley? Answer: Yes. We, the jury impaneled to try the above-entitled cause, do find the foregoing facts and verdict. P. Russell, Foreman." This constitutes a special verdict: "A special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict must present conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the court but to draw from them conclusions of law." Code Civ. Proc. § 624. The questions propounded and answered by the jury constitute the ultimate facts

S.

to be found, covering the issues growing out of the contest of the probate of the will in question, and together they form a special verdict, and this was signed by the foreman of the jury as required by law. Code Civ. Proc. § 618.

2. It is contended by the appellant that the court erred in admitting testimony, over contestant's objection, wherein it is claimed certain witnesses were permitted to give their opinion respecting the mental sanity of the testator at the time of making the will, where it did not appear that such witnesses were "intimate acquaintances" of said deceased. The cases pointed out by appellant's counsel under this head relate to the testimony of witnesses Spencer, Lizzie Connor, William Connor, Eugene Cotty, Miss Igo, and Mary Leonard. From an examination of Spencer, as shown by the record, it appears that he was quite intimate with the deceased, and, therefore, under the Code provision (Code Civ. Proc. § 1870, subd. 10), was competent to answer the question propounded in reference to the mental sanity of the testator. The same may be said in reference to the witness Lizzie Connor, but the question propounded to her was simply how he appeared compared with himself when he was well from a mental standpoint, and she answered: "He was rational. I did not see any difference in him, only he was weak from sickness." William Connor saw him several times at the hospital in Sacramento, and was asked: "During the times you visited Mr. Keithley there, did he appear to you rational or irrational?

*

A. Rational,"-proponent's counsel stating, in answer to objection of contestant's counsel, that the testimony was not offered to show the condition of the mind of the deceased, but as to his appearance. The witness Cotty was quite well acquainted with the deceased, and was asked as to his condition of mind compared with himself prior to his sickness, and answered: "He seemed to be all right. He seemed rational." The witness Miss Igo was a nurse at the hospital when Keithley was there, and was asked, "In all these visits you paid to Mr. Keithley during the time you saw him there, did he, from a mental standpoint, appear rational or irrational?" and answered, "Rational." The witness Miss Leonard was also a nurse at the hospital, and was asked a similar question, and answered: "I think he was rational. I never detected anything which indicated to me that he was not rational." In support of his contention under this head, appellant relies upon In re Carpenter's Estate, 94 Cal. 414, 29 Pac. 1101. In reference to that case it is said: "But while that case discusses and defines what the words 'intimate acquaintance,' as used in the statute, mean, it does not undertake to prescribe any measure of proof by which that relationship is to be determined; and, in the nature of things, it would be difficult to do so." People v. McCarthy, 115 Cal. 258, 46 Pac. 1073. And after quoting from

the opinion in that case, the court adds: "So it will be seen that that case leaves the question of competency practically where it found it, a question of large discretion in the trial judge to determine whether the evidence in any instance brings the witness within the rule of the statute." It is shown, in reference to the witnesses whose answers are objected to, that they had a greater or less degree of intimacy or acquaintance with the deceased, and also, with the exception of the witness Spencer, the questions did not call for an opinion as to the mental sanity of the deceased, but how he appeared to the witnesses. In People v. McCarthy, supra, the court held that it was proper to ask a witness whether the defendant acted rationally or appeared rational at a particular time; and in People v. Arrighini, 122 Cal. 123, 54 Pac. 591, it is said that "a witness may testify to the demeanor of the party, whether melancholy, morose, peevish, irritable, or the opposite, and no doubt other mental habits may be testified to, such as whether he was incoherent, forgetful, or irrational." "Something must be conceded to the intelligence of the witness and nis habits of observation, and all these qualifications the trial court can better judge." People v. Schmitt, 106 Cal. 52, 39 Pac. 204. "And so it has been held, and wisely, that the trial judge is to be accorded wide discretion and latitude in this respect; and his ruling will not be disturbed except where the evidence is so lacking as to leave no just room for discussion that the discretion has been improperly exercised." People v. McCarthy, supra.

3. Contestant submitted 21 instructions to be given to the jury, only 2 of which were refused, and 2 others modified. On the part of proponent 60 different instructions were submitted, 23 of which were given, a number of which were modified. Among the instructions given at the request of proponent, the appellant contends that some trenched upon the constitutional right of the jury to be the exclusive judges of the credibility of witnesses. A careful examination of these instructions fails to show us that they are subject to appellant's criticism in this respect. In view of the multitude of instructions submitted to the court, it would not be surprising at all if the language of some had been subject to criticism, but, upon the whole, these seem to be fair and free from legal objection. It may not be amiss here to animadvert upon the practice, too frequently indulged in jury trials, of loading down the case with innumerable instructions. Because they may be found in a form book on the subject, it does not follow that it is necessary to copy them all in every case, however involved in style they may be or irrelevant to the issues presented. A good case is frequently ruined by such a practice. The simpler and plainer instructions can be framed, and cover the issues, the better the jury will understand them, and the less liable will they be to run