may be transferred. Civ. Code, § 699. It has been transferred to the plaintiff, who, it is alleged, is now the owner thereof. There is, therefore, an existing contract relation and privity of estate between the parties to the action. The removal of this rock, of necessity, will materially injure the value of the contingent estate in the land, and, being removed for a forbidden use, it constitutes sufficient ground for the interposition of equity. It is our opinion that the restrictive clause may be considered as a limitation in favor of the grantors upon the use of the estate granted, and against the grantee, its lessees, and assigns, made for the purpose of feeding and protecting the grantors' contingent estate reserved by the next succeeding clause of the deed, and that it is also a personal covenant binding on the successors in interest of the grantee, by which they are prohibited from removing the rock for the use they are making of it; and hence that they may be restrained from so doing. We do not consider the question whether or not the covenant was one which runs with the land to be material to the decision of the case.

The objection that the complaint does not show that the plaintiff is an heir or assign of the original grantors is not well taken. It alleges that the plaintiff is, and has been ever since November 10, 1900, the owner in fee simple of all the lands described in the deed in question, "subject only to the terms and provisions" of the said deed. This means that he is the owner of all the estate and rights reserved therein to the grantors. He could only become such owner by descent or purchase from the grantors or their successors in interest; and hence he is either an heir or assign. Respondents also contend that, if the qualifying clauses of the deed are to be considered effectual to forbid the sale or other disposition of the rock taken from the seven acres, they constitute a contract in restraint of trade, and are void for that reason. This claim is based on the theory, which we hold untenable, that the deed does not forbid the quarrying or removal of rock, but only forbids certain uses of it after such removal. Where a grantor reserves a contingent estate in the land granted. and a condition or covenant is inserted in the deed forbidding the grantee from removing for certain uses a part of such realty, the removal of which would lessen the value of such contingent estate, such condition or covenant is a lawful contract for the protection of the grantor's interest, and cannot be deemed a contract in restraint of trade. By the terms of the covenant the parties are not to be restrained from engaging in the business of quarrying or selling rock in general, but only from taking for that purpose certain rock in which the plaintiff has an interest.

It is further contended that an action to

recover damages for waste, or to restrain waste, cannot be maintained by one having only a contingent estate, to become vested only upon a forfeiture for a violation of a condition subsequent. So far as the claim for damages for waste already committed, based upon the ownership by the plaintiff of such contingent estate, is concerned, this contention must be sustained. The plaintiff's interest is not vested (Civ. Code, §§ 693, 695); and hence he has no present property in the rock removed, for the value of which damages can be computed, or to which he could have the right of present possession. Hunt v. Hall, 37 Me. 363; Peterson v. Clark, 15 Johns. (N. Y.) 205; Sager v. Galloway, 113 Pa. 500, 6 Atl. 209; Brasher v. Macey, 3 J. J. Marsh. (Ky.) 93; Cannon v. Barry, 59 Miss. 289; Gordon v. Lowther, 75 N. C. 193. But the rule is different with regard to the equitable remedy by injunction. The owner of a contingent interest may protect that interest against deterioration or destruction by enjoining a threatened waste. This is well settled by the authorities. Hayward v. Stillingfleet, 1 Atk. 422; Robinson v. Litton, 3 Atk. 209; Brashear v. Macey, supra; Cannon v. Bar ry, supra; Miles v. Miles, 32 N. H. 147, 64 Am. Dec. 362; Petersen v. Ferrell, 127 N. C. 169, 37 S. E. 189; Cowand v. Meyers, 99 N. C. 198, 6 S. E. 82; Gordon v. Lowther, supra; Braswell v. Morehead, 45 N. C. 26, 57 Am. Dec. 586; Lewisburg University v. Tucker, 31 W. Va. 621, 8 S. E. 410. It comes within the rule that an injunction will be granted to prevent an injury to real property which consists of the removal or destruction of the substance of the estate, or where the party injured cannot be adequately compensated in damages, or where the resulting damages cannot be measured by any Richards V. certain pecuniary standard.

Dower, 64 Cal. 63, 28 Pac. 113; Silva v. Garcia, 65 Cal. 592, 4 Pac. 628; More v. Massini, 32 Cal. 595; 16 Am. & Eng. Ency. of Law, 361.

With respect to the breach of the covenant not to take rock, except for the permitted purposes, the breach of such a contract, of itself, constitutes a cause of action for at least nominal damages. Whether, in view of the nature of the plaintiff's interest, anything more can be recovered, is a question not discussed by counsel, and, as it is not necessary to the decision of the case, we express no opinion in regard to it. From the conclusions we have reached, it necessarily follows that the demurrer should have been overruled. The judgment is reversed.

On Rehearing.

BEATTY, C. J. Upon a careful reconsideration of this case after rehearing ordered, we find no occasion to modify our original opinion. Nor do we deem it neces

sary to undertake a discussion of the proper construction of our Code provisions relating to covenants running with the land. Our conclusions are not rested upon those provisions, and they contain nothing inconsistent with what we have decided. Conceding that there is no covenant running with the land in a strict legal sense, we still hold that the plaintiff, as the owner of a contingent future estate in the land, is entitled in equity to enjoin a threatened destruction of that estate by the tenant in possession, whether whether such threatened destruction be total or partial. When land is conveyed subject to a condition, breach of which will work a forfeiture of the estate granted, the grantor retains an interest in the land, the value of which will be impaired by the pulling down of houses, the cutting of timber, or the quarrying and removal of stone or any other valuable material contained in the soil, and it would be strange if the law afforded him no means of protecting his interest. It may be that there is a presumption in such case that there will be no breach of the condition subsequent and that there is a probability that the estate will never be forfeited, but, in dealing with the rights of the grantor, a court is bound to assume, as the parties by their deed have assumed, that there may be a breach of the condition, and to hold that the grantee has no right, in the meantime, to make way with the very substance of the estate. If, in such case, the deed contained no express provision restraining the removal of the soil, or cutting of timber or other destructive use of the land, we are clearly of the opinion that a court of equity would enjoin a threatened injury of the magnitude alleged in this case. But here the deed expressly limits the purposes for which stone may be taken, and this imposes a practical limit to the quantity that will be taken, and the right of the grantor, or his successor, to enjoin the transgression of that limit is even clearer than the right to an injunction would have been in the absence of such express express provision. Of course, there are exceptional cases to which the doctrine here asserted does not apply. One of them is defined in section 819 of the Civil Code the lease of a going mine or quarry. But such exceptions only fortify the general doctrine.

As to the objection so strongly urged that the stipulation in question is not binding upon the successors of the Pacific Improvement Company, and does not inure to the successor of the grantors, our opinion remains unchanged, and ought not to be misunderstood. The assigns of the grantee are expressly named in the deed, and whatever right the grantors had to protect their interest in the land passed by their conveyance of the land to their grantee. Their estate was alienable, and the right to sell

an estate includes the right to transfer the means of protecting it.

Our decision rests, of course, upon the case as presented in the record before us. If there are other facts or circumstances, proof of which would have a legitimate bearing upon the true construction of the deed to the Pacific Improvement Company, nothing we have said will prevent the defendant from alleging and proving such facts.

The judgment of the superior court is reversed.

SLOSS, J. I concur in the judgment. What the plaintiff's rights would have been if the deed had contained no provision limiting the grantee's right to take rock is a question not involved in this case, and I express no opinion upon it. It is enough to say that the deed under which the defendants hold did restrict the right of the grantee and its successors in interest to do certain acts destructive of the substance of the estate, and that this estate might, on breach of a condition subsequent, revert to the grantor. Such restrictions may lawfully be annexed to the conveyance of an interest less than an unqualified fee, and will be enforced at the suit of the holder of the future estate. Blake v. Peters, 1 DeG. J. & S. 345.

BIESCAR v. PRATT. (Civ. 275.) (Court of Appeal, Second District. California. Sept. 18, 1906.)

1. SALES - REMEDIES OF SELLER - RESALE

COLLECTION OF DRAFT DEPOSITED.

Under Civ. Code, § 3311, fixing the rights of the seller on breach of contract by the buyer, and section 1670, providing that a provision in a contract for a stipulated amount as damages is void except where it would be difficult to fix the actual damage, where a seller, on refusal of the buyer to complete the contract, sells the goods elsewhere at an advanced price, he is not entitled to collect a draft deposited as part of the price.

2. APPEAL HARMLESS ERROR - AMOUNT OF

RECOVERY.

Any error in not requiring a seller to return to a buyer a cash deposit on the price is not prejudicial to the seller.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 88 4060, 4061.]

Appeal from Superior Court, Los Angeles County; W. P. James, Judge.

Action by Henry Biescar against T. H. Pratt. From a judgment in favor of defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.

Milton K. Young, for appellant. Frank James, for respondeut.

SMITH, J. Appeal from a judgment for the defendant and an order denying the plaintiff's motion for a new trial. This is a suit by the indorsee against the indorser of a draft on a New York bank, the payment of which was refused by the bank under the defendant's instructions.

The case, as shown by the answer and findings, is: The plaintiff, by written contract of date December 26, 1903, agreed with the defendant and one Bassett to sell them "the business, consisting of stock, hardware, and fixtures now in building," described in the agreement, at invoice prices, etc., and the draft sued upon constituted a part of "the deposit of $500" made by the vendees to the vendor, and which, it is provided, should "be forfeited by them to said first party" in the event of failure of the second parties to pay the balance of the purchase price. The defendant and his co-vendee, on account of certain alleged misrepresentations of the plaintiff as to the aggregate value of the property and certain other matters alleged in the answer, refused to proceed with the contract, and, on the 11th day of January, 1904, attempted to rescind the contract, notifying the plaintiff thereof and demanding the repayment of the cash deposit and the surrender of the draft. The plaintiff refused to comply with this demand, but, it is alleged and found, continued to carry on the business, "and has sold much of the said stock of goods therein *** and has received the price therefor and made a profit thereon;" and finally, it is found, shortly after the commencement of this suit, sold the whole of the stock of goods and fixtures "for a price in excess of the invoice price, or amount agreed to be paid therefor" by defendant and his partner. This finding is attacked by appellant as not supported by the evidence, but we think without grounds. It is further found "that plaintiff has not been damaged or injured by any act of the defendant, or at all." The court below was of the opinion (1) that the plaintiff, by continuing to carry on the business and to sell the stock, and by finally selling the stock previously unsold for a larger price than the sum agreed upon, acquiesced in the rescission of the contract and thus became liable to return the deposit; and (2) that the provision as to forfeiture of the deposit was "void as being an attempt to liquidate damages in an unauthorized case."

In this opinion of the court we concur. The remedies of the vendor in a case of this kind are clearly defined. Civ. Code, § 3311; Gay v. Dare, 103 Cal. 458, 37 Pac. 466: 2 Benjamin on Sales, § 1117, and note. They do not include the right to sell the goods at an advanced price and to retain the purchase money paid on the contract, either as liquidated damages (Civ. Code, § 1670), or on any other ground. The appellant claims the contrary, and cites in support of his contention the decision in Glock v. Howard & Wil

son Colony Co., 123 Cal. 1, 55 Pac. 713, 43 L. R. A. 199, 69 Am. St. Rep. 17. But the contract there involved was for the sale of real estate, and contained a provision that time should be of the essence of the contract. To such cases it was held on the authorities cited that a peculiar rule applied. It has no application to such an agreement as here involved to sell personal property.

It is also objected that, upon the principle of the decision of the court below, defendant was entitled to a return of the cash deposit. This, we think, was the case, but the error is one that the plaintiff cannot complain of. The judgment and order appealed from are affirmed.

BUCKLES, J. This is an action to have a certain deed declared to be a mortgage, and to foreclose the same. The defendants were in possession of the land mentioned in said deed while the legal title thereto was in one Aaron Barnes. The complaint alleges that on December 3, 1883, the said Barnes entered into a contract and bond with the Shusters whereby he obligated himself to convey by bargain and sale deed said land to the Shusters on or before December 3, 1893, upon the Shusters paying to him the sum of $11,000 in sums not less than $100 and interest at the rate of 9 per cent. per annum. This contract and bond was duly recorded on the same day it was made. On October 5, 1892, the Shusters still owed $8,440 to said Barnes. To enable them to pay this debt, the plaintiff loaned them $8,440. The money was paid over to Barnes, the Shusters released and satisfied the contract and bond on the records and requested the said Barnes to and he did make,

execute, and deliver to the said plaintiff a deed to said land as security for the payment to him by said Shusters the said sum of $8,440, with interest thereon at the rate of 8 per cent. per annum, and the plaintiff gave the Shusters his bond for a deed for said land in which he agreed to convey said land to the Shusters on or before 10 years from October 5, 1892, upon the payment to him of the $8,440, with interest as aforesaid, by the said Shusters. That no part of the principal or interest of said debt was ever paid, and that at the time the suit was commenced there was due and unpaid the sum of $18,513.26. That in a suit in ejectment in which the plaintiff and the defendants were the same as in this action, tried in the superior court of Sonoma county, a judgment was duly rendered and entered on December 14, 1894, by which it was adjudged that the payment of the said sum of $8,440 by plaintiff to the Shusters and by them to said Barnes was a loan by plaintiff to said defendants, and that the deed executed and delivered by Barnes to plaintiff was a mortgage to secure the payment of said sum. Judgment was for defendants. An appeal was taken to the Supreme Court and the judgment affirmed.

The answer contains a specific denial and a setting forth the transaction of plaintiff paying over the $8,440 and the circumstances of Barnes making the said deed and the plaintiff making the said contract and bond to the Shusters, claiming in effect that such transaction did not constitute a mortgage, but a sale and conveyance of title of said land to the plaintiff, and also pleads bar under the statute of limitations. The only oral testimony as to the transaction between plaintiff and the Shusters was that given by the plaintiff. A short time before the deed was made one of the Shusters asked plaintiff to buy the land, and plaintiff replied: "I do not need the land. I really have more land now than I know what to do with," but then announced his willingness to furnish the money to pay the debt due to Barnes. Again when plaintiff and the Shusters were all together at the time the arrangements were agreed upon which were afterward carried out he says: "I told them I had the money now to let them have * and I asked them how they wanted to do the transaction and they said they would take a deed from Barnes and give me a mortgage. I then objected to taking a mortgage from them. Then they didn't really know how to do it, and I said it's like this, I will let you have the money to pay Barnes off, and you will discharge the record, and then I will give you a bond to purchase the property, and will give you 10 years' time, and will pay all taxes on the property during this 10 years' time, and you pay me interest at the rate of 8 per cent. per annum." The testimony shows that neither Meeker nor Barnes had ever been in possession of the said land. There is no evidence whatever to indicate the Shusters

were intending to sell the land to Meeker. The court below found that the Shusters solicited from Meeker a loan of $8,440 for the sole purpose of paying said Barnes the sum due him, to wit, $8,440, and then agreed with Meeker to repay him the said sum in 10 years; and that no agreement was ever made by plaintiff with said Barnes for the purchase of said land. The evidence abundantly supports these findings. Many errors are alleged in the court's rulings on the admission of evidence, but as all the testimony offered to which there was objection and exception seems to have been properly admitted we see no necessity of taking up the time and space to state them here. Independent of the findings and judgment of the case, Meeker v. Shuster (Cal.) 47 Pac. 580, the ejectment suit heretofore referred to, we think the oral testimony in this case with the bond and deed, Ishow the transactions to have been one of money loaning by Meeker to the Shusters, and a giving of the deed of Barnes to Meeker and the bond of Meeker to the Shusters, simply the means of securing the repayment of said loan and that therefore said deed must be treated as a mortgage. Besides this the suit reported in 47 Pac. 580, supra, was a suit between the same parties in relation to the same property, and involved a construction of the same deed, and we think the judgment in that case is conclusive that the said deed was intended as a mortgage. The judgment roll in the case 47 Pac. 580, supra, was placed in evidence over the objection of the defendants, and this is alleged as error. But the very question in issue was made a question there, and the conclusion reached in that case was the same sought to be reached in this case. The parties were the same there as they are here, and the testimony here sub: stantially the same as in the ejectment suit. McDonald v. McCoy, 121 Cal. 57, 53 Pac. 421; Wallace v. Sisson, 114 Cal. 42, 45 Pac. 1000. If the deed in that case, the case of eject-. ment, and the same deed that is being construed here, conveyed to the plaintiff in that case the title to the land, then the defendants would have been ejected, and that would have ended the contention as to the right to the land. But the court said in effect that it was a mortgage and the equity of redemption of the Shusters could not be foreclosed in an ejectment suit, besides the time for bringing an action to foreclose had not then accrued. In the ejectment suit the court found the Shusters to be the owners in fee of the land, and such a finding in this case could not contradict the proceedings in that case. If the deed was a mortgage in that case it was a solemn finding of a competent court when the same parties were before it, and when exactly the same subjectmatter, the same deeds, the same contracts, and the same bonds were being considered and exactly the same question there was litigated as is the paramount question here.