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ercise of ordinary prudence reasonably have eration of the entire record that the testiforeseen and guarded against, are matters which, in our opinion, should, upon the record presented, have been submitted to the jury.

The order denying plaintiff's motion for a new trial is reversed.

We concur: CONREY, P. J.; JAMES, J.

(32 Cal. App. 727)

PEOPLE v. PRIETZ. (Cr. 656.)

mony educed on behalf of the people is on the whole insufficient to support the verdict by reason of its inherent improbability.

[1] While, however, this is our conclusion as to the facts of the case, we are of the opinion that this is one of those cases wherein any error of the trial court in the admission or rejection of material evidence would amount to prejudicial error, particularly where the evidence thus erroneously admitted or excluded had a direct bearing upon the main issue in the case and upon the degree of

(District Court of Appeal, First District, Cali- credit to be accorded to the prosecuting witfornia. Feb. 7, 1917.) ness therein.

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[2] This brings us to the appellant's second contention, which is that the trial court erred in its rulings upon the admission of certain statements made by the prosecuting witness to another of the principal witnesses for the prosecution respecting complaints which the prosecuting witness claimed to have made with regard to her father's treatment of her. While upon the witness stand the prosecuting witness was asked the following question:

"Q. You stated to Miss Delmar that your father had committed many acts of sexual intercourse upon you, did you not?"

Permitting prosecuting witness, in a prose- Aside from the leading and improper form cution for rape, to testify to statements made of this question, to which the defendant did by her to a third party as to treatment she had not urge this specific objection, his other suffered was reversible error, where her story was close to the border line of incredibility, and proper objections to it were overruled by the where the prosecuting attorney had called the court, and the witness was permitted to anjury's attention to such statements in his open-swer the question affirmatively. The quesing. [Ed. Note.-For other cases, see Rape, Cent.

Dig. § 67.]

Appeal from Superior Court, Alameda County; J. J. Trabucco, Judge.

Robert Prietz was convicted of rape, and appeals. Reversed.

A. F. St. Sure, of Alameda, and J. Leonard Rose, of Oakland, for appellant. U. S. Webb, Atty. Gen., and John H. Riordan, Deputy Atty. Gen., for the People.

LENNON, P. J. This is an appeal from a judgment of conviction of the defendant upon a charge of rape alleged to have been committed upon his daughter at the time of the age of 15 years.

The record is voluminous, and presents a state of facts which it would subserve no worthy or useful purpose to reproduce in their disgusting and sordid details here. The appellant's first contention is that the story of the prosecuting witness as recited upon the trial of the cause is so inherently improbable as to require a reversal of the verdict and judgment of conviction based upon it. While there is much force in this suggestion, and while there was also much in the prosecution of the case as disclosed by the record which does not commend itself to us,

tion and answer thus permitted responded to the proffer of proof made by the prosecuting attorney in his opening statement to the jury, wherein he said, "She finally confessed to Mrs. Margaret Delmar what had been done to her all this time," and would thus be given an added impression and influence upon the jurors' minds. We are unable to distinguish the foregoing question and ruling from the question and ruling which led to the reversal of the case of l'eople v. Wilmot, 139 Cal. 103-107, 72 Pac. 838, wherein the obnoxious question was in the following form: "Q. Did she say whether or not this defendant had had sexual intercourse with her?"

The trial court permitted this question to be answered, and the Supreme Court reversed the case upon that sole ground, holding that the testimony elicited was clearly incompetent, and that it must have substantially affected the defendant's case.

In a case lying as close to the border line of incredibility as does the present one we think the error of the trial court in permitting the foregoing question to be answered was prejudicial to a degree which requires a reversal of the case.

Judgment and order reversed.

We concur: RICHARDS, J.; KERRI

we are unable to say from a careful consid-] GAN, J.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(33 Cal. App. 1)

ELLSWORTH v. NATIONAL HOME &
TOWN BUILDERS. (Civ. 2204.)
(District Court of Appeal, Second District, Cali-
fornia. Feb. 13, 1917.)

1. CORPORATIONS
CONSIDERATION.
Corporation stock issued in return for valu-
able services rendered and labor performed on
behalf of the corporation is not issued without
consideration.

99(2)-SALES OF STOCK

[Ed. Note. For other cases, see Corporations, Cent. Dig. § 445.] 2. CORPORATIONS

193-MEETING OF STOCK

the stock, which fact was also known to plaintiff; (4) that a transfer of the stock would be in violation of a pooling agreement to which appellant was a party, the existence of which was known to plaintiff; and (5) that plaintiff paid no consideration for the stock.

First. There is no merit in the first contention, since the uncontradicted record shows that the stock was issued by the corporation to Clark in consideration of valuable services rendered and labor performed by him for and on behalf of the corporation. HOLDERS-PLACE-VALIDITY OF ACTS. Though the by-laws provided that the stock[2] Second. The contention that the issuholders' meetings should be held in Phoenix, ance of the stock to Clark was illegal is Ariz., the acts of stockholders and of the direc-based chiefly upon the fact that defendant tors elected by them at a meeting in Los Angeles, Cal., to which all the stockholders consented, and notice of which they waived, were valid; the officers serving under such election being de facto.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 733.] 3. CORPORATIONS

130-TRANSFER OF STOCK ON BOOKS-RIGHT TO TRANSFER. The mere fact that certain stock was named in a pooling agreement which was never consummated would not prevent its transfer on the books to the holder.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 488, 489.] 4. CORPORATIONS

133-TRANSFER OF STOCK -REFUSAL OF CORPORATION TO MAKE-EVIDENCE-ADMISSIBILITY.

In action by a purchaser of corporation stock for refusal to transfer it on the books, evidence of the consideration paid by her was inadmissible.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 513-520.]

Appeal from Superior Court, Los Angeles County; Gavin W. Craig, Judge.

Action by Lucie E. Ellsworth against the National Home and Town Builders. Judgment for plaintiff and order denying motion for new trial, and defendant appeals. Af

firmed.

Gray, Barker & Bowen and Flint, Gray & Barker, all of Los Angeles, for appellant. S. L. Carpenter, of Los Angeles, for respondent.

SHAW, J. This action to recover damages for conversion is based upon defendant's refusal to transfer to plaintiff certain shares of its capital stock, evidenced by a duly indorsed certificate, No. 167, which the latter had acquired from one J. F. Clark, to whom the defendant corporation had theretofore issued the stock. Judgment went for plaintiff, from which, and an order denying its motion for a new trial, defendant appeals.

[1] As grounds for reversal, appellant claims: (1) That the stock was issued without consideration; (2) that the issuance thereof was unauthorized by the corporation; (3) that at the time when plaintiff demanded the making of the transfer, another party, with defendant's knowledge, held an option from plaintiff's assignor for the purchase of

was a corporation created under the laws of the state of Arizona; that the by-laws of the company provided that all meetings of stockholders, whether regular or special, should, upon notice as therein prescribed, be held in Phoenix, Ariz., whereas the board of directors which authorized the issuance of the stock to Clark was elected at a special meeting of the stockholders held, without notice given as provided in the by-laws, in the city of Los Angeles, Cal.—all of which facts appear to be

true. But it is likewise true that the holders of all of the outstanding stock, in writing consented to the holding of such meeting in the city of Los Angeles, and waived notice thereof, and that at the meeting so convened pursuant to such written consent, all of the stock of said corporation then issued was represented at said meeting and participated in the election of members of the board, each and all of whom received the unanimous vote of all the stock so represented. The board of directors so elected organized by electing officers, and in transacting the business of the corporation, assumed to and did act as the duly constituted board of directors of the company. Appellant insists that, by reason of the stockholders' meeting being held outside of Arizona, contrary to the by-laws of the company, such meeting and all proceedings there had were without right or authority, and hence wholly void. We cannot assent to this contention. It may be conceded that in a proper proceeding the members of the board so elected might have been ousted from office (State v. Cronan, 23 Nev. 437, 49 Pac. 41) but they were nevertheless, so long as they continued to act as the duly constituted board, de facto officers (San Joaquin L. & W. Co. v. Beecher, 101 Cal. 70, 35 Pac. 349; Barrell v. Lake View Land Co., 122 Cal. 129, 54 Pac. 594), the validity of whose acts is not subject to attack in an action of the character of that here involved (San Jose Sav. Bank v. Sierra Lumber Co., 63 Cal. 179; 2 Cook on Corporations [6th Ed.] § 623). Meetings held in violation of charter provisions have been held void. Mr. Cook in his work on Corporations (6th Ed.) § 589, in discussing such authorities, says:

"It is the sounder view to regard the votes | California, 79 Cal. 323, 21 Pac. 852, 5 L. R. A. and proceedings at such a meeting as voidable 233, 12 Am. St. Rep. 145, and Young v. New rather than void. The corporation itself cannot Standard, etc., Co., 148 Cal. 306, 83 Pac. 28, allege that such proceedings are void. It is estopped from so doing. So, also, are the stockholders who participated in the meeting."

To the same effect see Handley v. Stutz, 139 U. S. 417, 11 Sup. Ct. 530, 35 L. Ed. 227; Heath v. Silverthorn Lead, etc., Co., 39 Wis. 146; Thompson on Corporations, § 814. The stockholders' meeting in question, so far as disclosed by the record, was not in violation of any provision of the charter, but contrary to the by-laws which had been adopted by the stockholders. Neither the corporation nor the stockholders all of whom, as stated, were present and united in the election of this board of directors by unanimous vote of all the outstanding stock, as against plaintiff, who acquired the certificate in usual course, are in any position to assert as void the act of the board in issuing the stock to her vendor.

a

have no application to the facts here presented.

[4] Fifth. It must follow from what has been here said that whether or not plaintiff paid any consideration for the stock was no concern of appellant, and hence it was not error for the court to exclude any evidence as to the consideration paid therefor. The judgment and order are affirmed.

We concur: CONREY, P. J.; JAMES, J.

(32 Cal. App. 729) REDMOND v. McLEAN et al. (Civ. 2207.) (District Court of Appeal, Second District, California. Feb. 7, 1917.)

1. QUIETING TITLE 44(3) — EVIDENCE — PRIMA FACIE CASE.

In an action to quiet title, evidence, conmencement of the action he was and for a long sisting of plaintiff's testimony that at the comtime prior thereto had been in possession of the lot described in the complaint as delineated upferred to conveying the lot described in the comon a map under and by virtue of a deed replaint to him, was sufficient as a prima facie showing to establish plaintiff's right as against defendant to a decree quieting his title to the lot so described.

[Ed. Note.-For other cases, see Quieting Title, Cent. Dig. § 91.]

2. QUIETING TITLE 44(5) — EVIDENCE SUFFICIENCY.

Third. Appellant offered in evidence document signed by J. F. Clark, E. E. Ragsdale and one Joseph P. Smith, whereby Clark and Ragsdale agreed that Smith should have an option for a period of 12 months from August 5, 1911, to purchase from said Clark and Ragsdale 200,000 shares of the capital stock of appellant corporation for the sum of $2,000, to the introduction of which plaintiff's objection was sustained. No error is predicated upon this ruling. Waiving such omission, we perceive no error in the ruling for the reasons: First, that the agreement appears to have been made without any consideration therefor; and, second, there is nothing in the agreement showing that it had reference to the stock evidenced by certificate No. 167, issued to Clark long after the making of said agreement. We cannot assume 3. QUIETING TITLE ~47(2)—FINDINGS-CONthat the 50,000 shares of stock so purchased FORMITY TO ISSUES. As no issue as to the location of the boundby plaintiff was in violation of this agree-ary lines and dimensions of the lot was tendered ment made by Ragsdale and Clark, or if Smith exercised the option, they would not deliver to him the stock as agreed. There was no error in the ruling of the court in excluding from evidence this document.

tiff was at the time of the commencement of the Evidence held to justify a finding that plaintrial in possession of the lot described in the complaint, and was the owner thereof and entitled to a decree quieting his title thereto.

[Ed. Note.-For other cases, see Quieting Title, Cent. Dig. § 92.]

by the complaint, and there was nothing in the answer enlarging the scope of the complaint, the lot upon the ground and fix the dimensions a finding of the court which purports to locate thereof should be disregarded as a finding of fact not in issue or presented by the pleadings, and, being so disregarded, that part of the decree based upon such finding should be stricken.

[3] Fourth. It is next claimed that the stock in question so owned by Clark was subject to a pooling agreement signed by Clark. It is true a document was offered in evidence to which the signature of Clark was attached, providing that the stock and the certifi-County; Gavin W. Craig, Judge. cates evidencing the same, owned by the signers thereof, should be deposited with —, as trustee. Such pooling agreement, however, was never consummated, and the evidence clearly shows that certificate No. 167 was at all times, up to the time when he delivered same to the plaintiff herein, in the control and custody of Clark. There is no evidence of any circumstance that justified or excused the corporation for refusing to transfer the stock on demand of the plaintiff, and hence the cases of Jennings v. Bank of

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 97.]

Appeal from Superior Court, Los Angeles

Action to quiet title by John E. Redmond against Mrs. Della McLean and others. From a judgment for plaintiff, and an order denying a motion for a new trial, the named defendant appeals. Judgment modified, as modified affirmed, and order denying motion for new trial affirmed.

Olin Wellborn, Jr., and Alfred H. McAdoo, both of Los Angeles, for appellant. Edward Dietrich, Dietrich & Kidder, and Smith, Miller & Phelps, all of Los Angeles, for respondents.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

SHAW, J. Action to quiet title, the com- the complaint, and was the owner thereof plaint being in the usual form and alleging and entitled to a decree quieting his title that plaintiff was the owner and in posses- thereto. sion of lot 31, block 2, of the Golden Bay tract, as per map recorded in book 2, page 15, of maps, Los Angeles county, Cal.; that defendant, without right, claimed an estate or interest therein adverse to plaintiff. Defendant Della McLean, the appellant, answered, denying that the plaintiff was the owner or in possession of the lot described in the complaint; and, as a further defense, asserted that she was the owner in fee simple of the easterly 4 feet of said lot 31, but asked no affirmative relief. At the trial, judgment went for plaintiff, from which, and an order denying her motion for a new trial, defendant McLean appeals.

[3] Had the court contented itself with such finding and decreed in accordance therewith, no just cause for complaint would have existed. As stated, the action was one to quiet title. Notwithstanding this fact, the court, over objections of defendant that such question was not in issue, permitted evidence to be introduced under which it not only quieted plaintiff's title, but fixed the location of the boundary lines, and dimension of the lot. No issue was tendered by the complaint under which, had defendant suffered default or filed a disclaimer, the court would be justified in making a decree establishing the size and boundary lines of the lot; nor is there anything in the answer that enlarged the scope of the complaint. Nevertheless, by its judgment, the court found and decreed that said lot so described in the complaint as lot 31, block 2, of the Golden Bay tract, as delineated upon the map therein referred to, was located at a point"beginning at a point 460 feet east from the center line of an alley known as the Speedway on the southerly line of Ozone street, continuing thence along said southerly line of Ozone street a distance of 30 feet east, continuing thence in a southerly direction to a point distant 490 feet from the center of said Speedway along the northerly line of an alley between said northerly line in a westerly direction a Ozone and Rose streets, and continuing along distance of 30 feet to a point distant 460 feet from the center line of aforesaid Speedway along the northerly line of said alley, thence in a of Ozone street 460 feet from the center line of northerly direction to a point in the southerly line Speedway, being the point and beginning."

[1, 2] The sole question at issue upon the pleadings was whether plaintiff was at the time of commencing the action the owner and in possession of all or any part of the lot described in his complaint as lot 31, block 2, as delineated upon the map referred to. At the trial plaintiff, in support of his claim, testified that at the commencement of the action he was, and for a long time prior thereto had been, in possession of said lot 31, as delineated upon said map, under and by virtue of a deed whereby the grantors therein, describing the lot as in the complaint, conveyed the same to him. This evidence, uncontradicted, was sufficient as a prima facie showing to establish plaintiff's right as against defendant to a decree quieting his title to the lot so described. Davis v. Crump, 162 Cal. 513, 123 Pac. 294; De Noon v. Morrison, 83 Cal. 163, 23 Pac. 374. In opposition to the case so made by plaintiff, defendant conceded that plaintiff, under the deed, was in possession of all of said lot, except a strip of 4 feet on the easterly side thereof, which defendant claimed to be in possession of by virtue of an agreement fixing the boundary line between the lots. Aside from any conflict in the testimony touching the question of possession, the evidence offered by defendant was wholly insufficient to establish any agreement fixing the boundary line. While both parties had caused surveys to be made and the surveyors had agreed upon a line, there is no evidence that plaintiff ever acquiesced in the line so established by these surveyors. There is some meager evidence as to a fence, erected by somebody undisclosed by the record; but it is not made to appear that the fence was erected in accordance with any agreement between plaintiff and defendant, nor is it shown at what time the fence was erected; indeed, from aught that appears to the contrary, it may have been erected the day before the trial. Upon the state of the record here presented, the court was fully justified in finding that plaintiff her costs on this appeal. was at the time of the commencement of the trial in possession of the lot described in

Not only was the question of the dimensions and location of the lot not involved, but we are unable to find any evidence in the confused and jumbled record presented which sustains the finding of the court as to the location of the boundary lines of the lot.

That part of the finding which purports to locate the lot upon the ground and fix the dimensions thereof should be disregarded as a finding of fact not in issue or presented by the pleadings. Thus disregarded, that part of the decree herein quoted and following the language of said finding is without support, and hence should be stricken from the decree.

The judgment is therefore modified by striking therefrom that portion commencing with the words, "beginning at a point 460 feet," and ending with the words, "being the point of beginning." As thus modified, the judgment is affirmed, and hence no reason exists for granting appellant's motion for a new trial, and the order denying said motion is likewise affirmed; appellant to recover

We concur: CONREY, P. J.; JAMES, J.

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"That he will not call upon the lessor for any repairs, alterations, or maintenance during said term."

Both leases contain the additional covenant on the part of the lessee to the effect that:

"He will surrender and yield up possession to the lessor all in good order and repair as the same is received by him, reasonable use and wear thereof and damages by the elements alone excepted."

A lease providing that the lessee will not call upon the lessor for repairs and will surrender premises in good order less reasonable use casts upon the lessee the burden of making repairs necessary to make the building safe. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 541-543.] 2. LANDLORD AND TENANT 101-REPAIRS-ises, the city engineer of the city of Fresco STATUTE.

Civ. Code, § 1932, providing that the hirer of a thing may terminate the hiring when the greater part of the thing hired perishes, etc., is inapplicable to a lease which requires the lessee to make the repairs.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 314, 315.]

It appears that in December, 1913, two years before the plaintiff vacated the prem

served a notice upon the defendant as owner of the leased premises, declaring the building to be dangerous in certain specified particulars, and requiring its demolition within 60 days thereafter. Following the receipt of this notice defendant, under the provisions of the city building ordinance, demanded an

Appeal from Superior Court, Fresno Coun- arbitration to determine whether or not the ty; H. Z. Austin, Judge.

building could be repaired and rendered safe Action by J. H. Egan against Fred Dodd. under the ordinance. The matter was subJudgment for plaintiff, and defendant ap-mitted to arbitration in the manner provided peals. Reversed. in the ordinance; and in their report made

Geo. Cosgrave, of Fresno, for appellant. to the city engineer the arbitrators agreed Short & Sutherland, of Fresno, for respond-"that there is no necessity whatever for

ent.

KERRIGAN, J. The plaintiff commenced this suit to recover from the defendant a balance alleged to be due for laundry work. The defendant answered, and also set up a counterclaim, in which he alleged that the plaintiff was indebted to him for the rent of premises situate in the city of Fresno, and held by plaintiff under two leases from the defendant. The judgment of the court was in favor of the plaintiff and that the defendant take nothing by his counterclaim. Defendant appeals.

The question presented for determination is as to whether or not the plaintiff was entitled under the circumstances of the case to abandon the premises held under said leases, and thereby terminate them, and calls for a construction of the provisions of the leases relating to the obligation to keep the premises in repair.

Concerning the lessee's obligation to repair, the lease of what is called the main building provides:

taking down any portion of the building," but reported that certain repairs were necessary and should be made. Upon receipt of a copy of the arbitrators' report defendant at once wrote plaintiff advising him of the requirements of the arbitrators as to repairing the building, and, referring to the covenants of the lease regarding the lessee's obligation to repair, notified him to make at once the repairs required. Those repairs were not made. Subsequently, and during the life of the lease, a portion of one of the walls of the building collapsed owing to an excavation made into the adjoining land in the course of building operations thereon; whereupon and almost immediately the defendant, although insisting that he was under no ob ligation to do so, commenced to repair the wall, saying that he felt under all of the circumstances of the case that perhaps it would be asking too much of the tenant to make this particular repair. Nevertheless the plaintiff, without notice to the defendant. abandoned the premises, and moved into building which he had recently caused to be erected.

"The lessee also agrees that the lessor shall not be called upon to make any repairs or im- [1] The covenants to repair above set out provements whatever in said leased premises bound the tenant, we think, under the genduring the term of this lease, or any renewal eral rule adopted in this state, to make the thereof, and that he will at all times and at his own cost and expense keep said premises in repairs, and he was not entitled because of good order, repair and condition, provided, how- the condition of the building to vacate the ever, that the lessor agrees to install" (here follows an enumeration of certain improvements agreed to be made by the lessor, and a provision imposing on the lessor the repair of the roof of the building, but which are not involved in the present controversy).

The other lease, covering a portion of the second floor of the building, contains the following covenant on the part of the lessee:

premises. The effect of such covenants is thus stated by Tiffany, in his work on Landlord and Tenant, at section 116 (d):

"An express covenant by the tenant to repair or keep in repair binds him to repair, although the injury were accidental and in no way caused by his negligence. The express covenant to repair binds the covenanter to make good any injury which human power can remedy, even if

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
164 P.-2

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