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3. The third point presents a more material and important question, and it challenges the action of the court in refusing to give an instruction asked by the defendant, as follows:
"If you have in your minds a reasonable doubt as to whether defendant's story is true or false,-that is, if you are not satisfied that it is false, then his story shows he acted in protecting himself from great bodily harm, or that his position or surroundings were such as to excite in the mind of a reasonable person fear that his life or body was in great danger, then you should not hesitate to acquit him, and give him the benefit of that doubt."
The foregoing instruction, as we understand it, does not contain a correct statement of the law; and if it did, the matter covered by the question of self-defense was embraced in other instructions given the jury by the court.
After an examination of all the instructions in the case, we think the law was fully and correctly stated on the trial, and, finding no substantial error in the record, the judgment and order are affirmed. We concur: MYRICK, J.; THORNTON, J.
(68 Cal. 8)
WYRICK V. WECK. (No. 9,127.)
Filed November 19, 1885.
TRUST-ACTION TO DECLARE-NOTICE OF EQUITIES.
Where the complaint in an action against the holders of the legal title to land, to charge them with a trust in favor of plaintiff, expressly alleges that. the defendants, at the time of their purchase, took with notice of plaintiff's equities, plaintiff must prove the facts showing such notice, if nothing appear in the record to put the defendants on inquiry.
Department 1. Appeal from superior court, county of Humboldt. Moore, Laine & Johnson, for appellants.
J. J. De Haven and James Hanna, for respondents.
Ross, J. The complaint charges, in substance, that in the year 1858 Jacob Wyrick located the land in controversy under the state laws, and received therefor a certificate of purchase; that he subsequently died, leaving surviving him his widow and certain children, who are plaintiffs in this action; that subsequently the widow attempted to sell and assign the certificate of purchase to one Devenish, who, by means of the pretended assignment and payment of the balance of the purchase money, procured a patent from the state conveying to him the said land, and that the title thus conveyed to Devenish was taken by him in trust for the heirs of Wyrick. The complaint then alleges that subsequently Devenish "sold, and by his deed of that date, (January 28, 1870,) by him signed, sealed, acknowledged, and delivered, granted and conveyed to Frank A. Weck, one of the defendants herein, the whole of the S. of the S. W., etc.; and plaintiffs allege, upon their information and belief, that the said Weck, at the time he purchased said land and took said conveyance, did so with full knowledge and notice of all the facts herein alleged, and partic
ularly with notice that the said land had been located by Jacob Wyrick, and that he had received (after the payment of the 20 per cent. of the purchase money and one year's interest in advance) the state certificate of purchase, and that said Wyrick died at the time herein before alleged, leaving him surviving his said wife and children, the plaintiffs herein, as his sole heirs at law." Similar allegations in respect to notice are made as to the other defendants, all of which were fully denied by the defendants.
On the trial the plaintiffs proved the location of the land by Jacob Wyrick; the issuance of the certificate of purchase to him; his subsequent death, leaving the plaintiffs his heirs at law; that the widow subsequently executed a pretended assignment of all her interest in the certificate of purchase to Devenish, who, upon the certificate so assigned, and payment of the balance of the purchase money, obtained a patent from the state, conveying to him, in his individual name, the premises in dispute. And then the plaintiffs rested, without any proof of the allegations of the complaint in respect to notice on the part of defendants of plaintiffs' equities. The court below gave judgment of nonsuit, which is here claimed to have been error.
It is said that the defense of a bona fide purchaser without notice is in the nature of new matter, the burden of proving which is upon the defendant. Ordinarily this is so. But here the plaintiffs allege that the defendants hold the legal title to the property, derived through the deed from Devenish, the patentee, and, to charge them with the trust, expressly allege that at the time of their purchase they took with notice of the plaintiffs' equities. The proof on the part of plaintiffs was devoid of any fact tending to show notice on the part of defendants of plaintiffs' rights. There was nothing of record to put them on inquiry. The patent upon its face showed that the land was granted to Devenish, from whom defendants purchased, as is expressly charged in the complaint. If there were matters in pais tending to show notice of plaintiffs' rights at the time of such purchase, as is also charged in the complaint, it was necessary for the plaintiffs to make the proof; for without such proof the title must remain where plaintiffs have alleged it to be-in defendants. Code Civil Proc. § 1981. Judgment affirmed.
MYRES v. SURRYHNE. (No. 8,469.)
PRINCIPAL AND AGENT-REAL-ESTATE BROKERS AGREEMENT FOR EMPLOY-
A real-estate broker cannot, in consequence of the statute, (Civil Code Cal. § 1624,) recover reasonable compensation for services performed by him in negotiating for defendant an exchange of real property, unless the agreement authorizing him to perform the services was in writing, subscribed by the defendant.
Department 1. Appeal from superior court, county of Alameda. W. H. Allen, for appellant.
Vrooman & Davis and Edward Lynch, for respondent.
BY THE COURT. The case arises out of an action to recover a reasonable compensation for services alleged to have been rendered by the plaintiff's assignor, as a real estate agent, in bringing about an exchange of certain real properties for the defendant. On the trial of the issue framed by the complaint and answer, plaintiff gave in evidence a book kept by the real estate agent, in which he or his clerk entered memoranda of real properties for sale or exchange. The book shows a memorandum which it was proved was furnished by the defendant and transcribed on the book by the clerk of the agent. The memorandum was as follows:
"Exchange Oakland property. $25,000.' In the margin,-left-hand margin, Block 690 and a part of block 511 and a part of block 527, with good improvements, nine houses, barn, coal-yard, lumber-yard, with all the fixtures necessary for a first-class business, with a mortgage of $6,000. Brandon, agent; Surryhne, owner.'"
Appended to this entry there was a diagram of the property, showing the location of the blocks and the streets by which they were bounded.
It was not claimed, nor is it now, that this memorandum constituted a contract, or a note or memorandum of a contract, for the payment of compensation or commission to the agent. But in connection with it the plaintiff asked of a witness "to state what services, if any, was performed by the agent in procuring an exchange of real estate between defendant and Mr. Tinson." To that the defendant objected, unless the plaintiff proposed to show a contract in writing between the defendant and the real-estate agent for the alleged services. Upon an intimation by the court that the objection would be sustained unless written authority was shown, plaintiff made the following offer:
"We offer to prove that plaintiff's assignor was employed by defendant, as stated in the complaint, to perform, and did perform, the services mentioned in the complaint; that in fact he did perform such services, and the value thereof was and is $600; that there was no contract, agreement, or memorandum in writing, subscribed by defendant or his agent, employing or authorizing plaintiff's assignor to make such sale or exchange, or do or perform the acts specified in the complaint, other than said book."
Defendant objected to the offer, and the court, against plaintiff's exception, sustained the objection, on the ground that there was no contract in writing subscribed by the defendant, as required by subdivision 6 of section 1624, Civil Code. The ruling is sustained by McCarthy v. Loupe, 62 Cal. 299; Pacific L. & T. Co. v. Blockman, 11 Pac. C. Law J. 24; and Schuller v. Farquarson, 6 Pac. Rep. 86. And upon the authority of those cases the judgment and order appealed from are affirmed. Motion to dismiss appeal denied.
(68 Cal. 12)
HOBART V. TYRRELL.
Filed November 19, 1885.
1. FRAUDULENT CONVEYANCES-ASSIGNMENT-EFFECT OF ORDER ON DEBTOR. An order drawn by a creditor on his debtor in favor of a third person and accepted by the debtor operates as an assignment of so much of the debt as is represented thereby, and the assignee thereupon becomes the creditor of the debtor, and as such may attack subsequent conveyances by the latter as fraudulent against creditors.
2. EVIDENCE-WRITING, WHOLE MAY BE GIVEN AFTER ADMISSION OF PORTION OF. Where one party introduces in evidence a portion of certain testimony given by a witness in another proceeding, the other party is permitted to read in evidence the whole of such testimony.
Department 1. Appeal from superior court, county of Alameda. R. A. Redman, for appellant.
J. G. McCallum, for respondent.
Ross, J. The subject of this controversy is a certain promissory note executed by the California Hosiery Company to Francis A. Hobart, the plaintiff and appellant herein, and levied on by the respondent as sheriff by virtue of a writ of attachment issued in an action brought by one Clay against John A. Hobart, the father of appellant. The note was executed for part of the purchase money of a piece of land which was, on the twentieth of March, 1880, conveyed by John A. Hobart to his son Francis as a gift, and afterwards conveyed under a power of attorney by John A., as attorney in fact of Francis A. Hobart, to the California Hosiery Company.
The main question in the case is whether or not the conveyance from John A. Hobart to his son Francis was fraudulent as against Clay. On the part of the appellant it is contended that section 3439 of the Civil Code does not apply to those who become creditors after the making of the conveyance, and that Clay was such subsequent creditor. But in respect to Clay's status we think counsel mistaken. It appears that one Kennedy had entered into a contract with some Chinamen, by which, in consideration of the sum of $17,000 to be paid them, they were to do certain work in and about the construction of a certain road and tunnel, and that, on or about January 25, 1880, John A. Hobart guarantied the payment of the money upon that contract; that the Chinamen proceeded with the work, money became due them therefor, Clay advanced them money, and took orders therefor on Hobart, which were accepted by him. The guaranty by John A. Hobart was prior to his conveyance to his son, as were also the advances by Clay to the Chinamen. The liability of Hobart was then existing upon which he might, and afterwards in fact did, become liable to pay money to Clay by reason of the orders drawn on and accepted by him. These operated as an assignment of so much of the debt as was represented by them. As assignee, Clay stood in the same position as his assignors.
The evidence is such that we would not be justified in disturbing the findings of the trial court upon the ground that they are unsup
ported by the evidence. The court below permitted a witness to read, against the objection of the plaintiff, the testimony given by John A. Hobart upon an examination theretofore had before a justice of the peace, and this is claimed to have been error, for the reason that no proper foundation therefor had been laid. But it appears from the record that Hobart, when on the stand, without being asked in respect thereto, read an extract from the same testimony, saying at the time that what he had read was not all that he had testified to on that occasion. Under such circumstances, was it error to permit Baker to read all of his testimony? We think not, under the provisions of section 1854 of the Code of Civil Procedure, which reads: "When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood, may also be given in evidence."
Other points made do not require special notice. order affirmed.
We concur: MCKINSTRY, J.; MCKEE, J.
KENNEDY V. GIFT. (No. 9,146.)
Filed November 19, 1885.
APPEAL-FINDINGS, WHAT SUFFICIENT AS-ACCUSATION FOR COLLECTION OF ILLEGAL FEES.
On a verified accusation against a defendant, charging him, as constable, with knowingly and willfully collecting illegal fees of plaintiff, findings held to be sufficient, and the designation of them as the "decision," immaterial.
Department 2. Appeal from superior court, county of Contra
A. H. Griffith, for appellant.
E. J. Emmons, for respondent.
BY THE COURT. This is an action under section 772 of the Penal Code, upon a verified accusation against defendant, charging him, as constable, with knowingly and willfully collecting of plaintiff illegal
We have examined the record. The facts material to the issue are found in the paper entitled "Decision," printed in the transcript, and we are of opinion that they are correctly found, and that the proper conclusion of law is deduced therefrom. The court committed no error in refusing to file any other findings than those above referred to. Judgment and order affirmed.