If we inspect the affidavits and stipulation of facts filed upon the motion to affirm, the real history of the record becomes clear. Both the proposed "Bill of Exceptions" and the proposed "Statement on Motion for New Trial" were served by copies, under one cover, upon counsel for respondents. Subsequently the proposed "Bill" was left by the clerk upon the desk of one of the judges of Santa Barbara county, and the "Statement" was sent to Judge Unangst at San Luis Obis-(Supreme Court of California. April 16, 1918.

MELVIN, J. These two cases involve substantially the same questions of law and

In affirming the order for the reasons fact, and will, therefore, be treated in one

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

opinion. The appeals are from the judg- I was in their favor, and the findings were

ments.

The Hellman Commercial Trust & Savings Bank, formerly known as Merchants' Bank & Trust Company, was the nominal owner of the properties involved in both actions, which were certain lots of "tract 1292" in the San Fernando valley in Los Angeles county. This corporation, which we will designate as "the bank," was in reality a trustee for the equitable owners, Huntington and Brookins.

like those in the other case. The court also found that the improvements made by the Coopers were of the value of $450, and that there was a partial failure of consideration in two particulars: (1) Because of the lack of a water supply; and (2) by reason of the damage done by a flood in February, 1914. In explanation of the latter finding we should call attention to the fact that, as appears from the record, negotiations for settlement were had between the vendor and The Condon Case. Under date of March vendees after the Coopers filed their com25, 1912, the bank entered into a contract plaint. This resulted in an arrangement for with T. J. Condon for the sale to him of lots a settlement on the basis of a reduction of 16 and 17 in the tract for $3,500, in four in- $300 in the purchase price in favor of the stallments of $875 each, with certain interest vendees. A letter embodying these terms on deferred payments. The sum of $75 was was written by Mrs. Cooper and her attorpaid by the vendee at the time of the ex- ney and received the sanction of the real ecution of the agreement. By the terms of owners of the land. A check for the amount the contract the bank promised to grant to of the agreed initial installment under this Condon without cost to him 1% miner's inch-new alleged contract of sale was sent, but es of continuous flow of water, and "a 10-payment thereon was stopped for the reason, 240 interest in the reservoir and complete dis- as it appears, that a flood had washed away tributing system." The water was described as a part of that conveyed to the bank by a designated deed of certain date from the Tejunga Company. The deed in question conveyed to Condon's vendor 33 inches continuous flow, subordinate, however, to rights of previous purchasers to 333 inches.

the soil from a substantial portion of the land described in the contract. The alleged agreement embodied in the letter and its indorsement, which latter was made in February, 1914, was set up by supplemental answer, to meet the allegations of a supplemental complaint filed by the Coopers.

[1] We are of the opinion that before partial consummation of this contract by a payment of any of the purchase price under it, the Coopers were in a position to withdraw from it. Without reviewing the testimony in detail, it is sufficient to say that before purchase of the properties by the Coopers and Condon, the vendor and its representatives assured them that there was and would continue to be a constant supply of water to the

On June 18, 1913, the bank filed its complaint to quiet title as against Condon, and one month later the vendee served notice of rescission of the contract, and verified and filed his answer and a cross-complaint. In the latter he prayed rescission of the agreement upon the ground that at and prior to the time of the execution of the contract it was falsely represented that the vendee should have "a plentiful supply of water for domestic purposes, irrigation, and fire protec-amount indicated by the contracts of sale. tion, viz. 1% miner's inches continuous flow." In the answer the bank set up the deed from the Tejunga Company, and pleaded laches of the vendee in failing to seek rescission for more than a year after knowledge of the facts of which he complained. The trial court found that false representations had been made to the vendee, on which he relied, and that he had not been guilty of laches.

They were told that there was an abundance of water, and that in Tejunga Canyon there was a dam and reservoir, with ample supply of water to irrigate all San Fernando valley. The evidence amply justified the finding of the court "that at times there was not sufficient water for domestic use, and there has never been sufficient water for irrigation at all times of the year when irrigation was Cooper Case. The bank agreed to sell to necessary for the raising of crops." Hattie O. Cooper and her son Jos. L. Cooper [2] But appellants insist that even concedlots 31 and 32 for $3,250 in certain install-ing these representations to have been made, ments, the initial payment, which was made, the proof of laches in each case is so clear being $1,000. The agreement was dated that the respondents must be held to have May 28, 1912. The clauses with reference to accepted their contracts in spite of the scarwater were the same as those in the Condon city of water, and that they were not in pocontract. On May 27, 1913, the vendees serv-sition to rescind because each was in default ed notice of rescission, tendering a quitclaim in payments due under the respective agree deed to the property, demanding, however, ments when the notices of rescission were return of the $1,000 and $800 which they al- given. Undoubtedly, the vendees realized leged had been expended by them in im- that they were not getting the water supply provements on the land. On May 28th they promised by the vendor and its agents, and filed their complaint in a suit for rescission if nothing had been done further by Consimilar in all essential particulars to the don and the Coopers there would have been

terial respect because the soil of about four acres of the ten which the Coopers had contracted to purchase was washed away and destroyed by flood waters. This is surely the allegation of new matter occurring after the commencement of the original action, entitling the plaintiffs to additional relief, and we think a supplemental complaint was proper under the circumstances. Melvin v. E. B. & A. L. Stone Co., 7 Cal. App. 324, 326, 94 Pac. 389. By its answer appellant emphasized the fact that the relations of the litigants had altered after the commencement of the action by pleading an alleged new contract made by way of compromise.

red by laches from seeking relief. But there was ample evidence to the effect, and the trial court found, that the purchasers were given assurances from time to time, and that these promises induced them to remain upon the properties, and to endeavor to cultivate the land. For example, it was in testimony that, at a meeting on the tract in July, 1912, Mr. Huntington, one of the owners, said that given a little more time they would supply water to the vendees. Dr. Hanson, the president of the water company, said all they wanted was a little time and plenty of water would be supplied. These promises were given from time to time, not only before this litigation, but the alleged compromise with But it is argued that the loss caused by the Coopers was induced by representations the washing away of the soil must fall on the made by Mr. Huntington and others, that im- Coopers (so appellant contends) because they provements in the water system then being had received the consideration by being permade would insure a bountiful supply of wa-mitted to occupy the premises prior to the Under these circumstances there is flood. In this behalf, appellant's counsel much force in the argument of respondents cite language from Conlin v. Osborn, 161 Cal. that the conduct of the vendor estopped that 659, 120 Pac. 755, in which, in analyzing corporation and all who are interested with the opinion in Smith v. Phoenix Insurance it from setting up the defense of laches on Co., 91 Cal. 330, 27 Pac. 738, 13 L. R. A. 475, the part of the vendees. The bank, after 25 Am. St. Rep. 191, we said that the court holding out such promises, and thereby in- had there adopted the rule that: ducing the vendees to postpone any efforts to erty in the vendor's possession prior to the date "The destruction by fire of buildings on proprescind the agreements, may not subject the fixed for the payment of the purchase price and said vendees to injury by disappointing the the conveyance of the title defeats the vendor's expectations on which they acted. Carpy v. right to compel performance on the part of the intending purchaser under the contract." Dowdell, 115 Cal. 677, 686, 47 Pac. 695.

ter.

[3] Appellants cite such cases as Owen v. Pomona Land & Water Co., 131 Cal. 530, 63 Pac. 850, 64 Pac. 253, in which it was held that where water shares were sold with certain land, the prediction by agents of the vendor that wells furnishing the water would always yield as abundantly as they were then providing was but an expression of opinion in the absence of any guaranty that the supply of water would be permanent. There is nothing in that authority, or in the other cases cited, which is in conflict with the conclusion reached by the court in this case. In the contract now before us the grantor promised a definite quantity of water, and the representations made to the vendees were not mere matters of opinion, but amounted to promises that the water company by means of its improved facilities could and would furnish the agreed quantity of water. The facts in this case bring it within the rule announced in such authori

ties as Hill v. Wilson, 88 Cal. 92, 95, 25 Pac. 1105, to the effect that assurance by a vendor that the land to be sold is well watered during the irrigation season is not the mere utterance of an opinion. See, also, Tracy v. Smith, 165 Pac. 535.

[4] Complaint is made by appellant that there was grave error committed in permitting the Coopers to file a supplemental complaint. By this pleading it was averred that about the 20th or 21st of February, 1914, the consideration for the contract failed in a ma

But that did not amount to a decision that

under no contract may there be a failure of consideration, of which a vendee in possession may avail himself. Indeed, in the very case of Smith v. Phoenix Insurance Co., supra, cited by appellant, the court referred with approval to Thompson v. Gould, 20 Pick. (Mass.) 134, wherein a vendee in possession who had paid the whole purchase price, recovered the money because of destruction by fire of a material part of the consideration before any conveyance had been tendered.

No other matters discussed in the briefs require analysis.

Judgments are affirmed.

We concur: WILBUR, J.; VICTOR E. SHAW, Judge pro tem.

(178 Cal. 158) ADAMS v. ANTHONY. (L. A. 4204.) (Supreme Court of California. April 16, 1918.) 1. SALES 479(2)—RIGHT OF POSSESSION OF PROPERTY-CONDITIONAL SALES-LEASES.

An owner of an automobile who has leased it for a certain sum, payable monthly in installments, with an option of purchase, the contract providing that in case of default in any payment the lessor may retake possession is on such default, entitled to take and retain possession of the automobile; the right of the lessor thereto being entirely dependent on the contract. 2. SALES 479(11) — CONSTRUCTION CURRENT RIGHTS.

CON.

Where a contract for the lease of an automobile provided that upon default the lessor was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
172 P.-38

entitled to retake possession, and that such retaking of possession should not relieve the lessee from the payment of any sum due, the prosecution by the lessor of an action on the lessee's overdue notes given under the contract did not affect the lessor's right of possession, the right to retake possession and to sue for deferred payments being concurrent and not alternative.

Department 1. Appeal from Superior Court, Los Angeles County; Curtis C. Legerton, Judge.

Action by L. S. Adams against E. C. Anthony, doing business under the style and firm name of California Motor Company. Judgment for plaintiff, and defendant appeals. Reversed.

E. W. Freeman, A. D. Laughlin and Paul N. Nourse, all of Los Angeles, for appellant. Jones & Evans and Monta Moore, all of Los Angeles, for respondent.

in favor of the defendant. The agreement shows in every line the effort of the draftsman to give to the transaction the form and character of a lease. We need not stop to consider how far this effort was successful. Whether the writing be, in legal contemplation, a contract of lease or one of conditional sale, the plaintiff must rest his claim of possession upon its terms alone. By the express provisions of the agreement he was entitled to possession only so long as he complied with his obligation to pay the installments upon the dates when they fell due. Failing in this, the defendant was entitled to retake the property, of which he was and action on the overdue notes did not affect remained the owner. The prosecution of an the right of possession, since, as we have seen, the parties expressly stipulated that the termination of the lease, or agreement, should not relieve the plaintiff from the obligation to pay any sums then due. In suing on the notes, while still retaining possession of the automobile, the defendant was merely exercising rights, which, under the agreement, were concurrent and not alternative. The rules governing the decision are declared in Muncy v. Brain, 158 Cal. 300, 110 Pac. 945, which, in its essential aspects, is not distinguishable from the case at bar. The judgment is reversed.

On June 15, 1914, the parties entered into a written agreement concerning the truck, which was then the property of the defendant. By the terms of the writing, Anthony leased the truck to Adams for the term of 12 months, for a rental of $3,785, of which $1,200 was paid at the time, and the balance was made payable in monthly installments, for which Adams gave his promissory notes. It was stipulated that in default in payment of any of the rental, the lessor might at his option terminate the lease by written notice HOOD v. BEKINS VAN & STORAGE CO. to the lessee, whereupon the lessee should lose all right to possession of the automobile and the right to purchase it, and the lessor should be entitled to possession; "but it is

agreed," so the writing proceeds, "that such termination of this lease shall not release the lessee from the payment of any sums due lessor up to and including the day of such termination." Time was made of the essence, and it was provided that any default by the lessee should release the lessor from all obligations to further lease the automobile, and the lessee should forfeit all rights there to In the event of full performance by the lessee at the times specified, he was given the right, "within three days thereafter," to purchase the automobile for $1. There were other provisions, not necessary to be set forth here. Pursuant to this contract, the plaintiff was given possession of the machine. He defaulted in the payment of

the first two installments, of $150 each, due on July 15, and August 15, 1914. The defendant gave him notice of termination, and took possession of the automobile. Thereafter he commenced suit on the two notes given for these installments and recovered judgment.

[1, 2] On these facts, which are undisputed, judgment in this case should have gone

We concur: SHAW, J.; RICHARDS, Judge pro tem.

(L. A. 4192.)

(178 Cal. 150)

(Supreme Court of California. April 15, 1918.) 1. EVIDENCE 355(5) DESTRUCTION OF GOODS-VALUE.

were

destroyed in storage, evidence that defendant
In an action to recover the value of goods
had inserted an advertisement in a telephone
directory stating that its warehouses
fireproof was properly admitted as corroborat-
tract whereunder defendants were to have stor-
ing plaintiff's evidence of the existence of a con-
ed the goods in a fireproof depository.
2. APPEAL AND ERROR 1010(1)—REVIEW-
QUESTIONS OF FACT.

the only evidence of value was that of plaintiff,
Where in an action for damages to property
the court on appeal will not disturb finding of
court based on such evidence.
3. EVIDENCE 474(19)—VALUE.

In an action to recover the value of goods destroyed while in storage, the owner was competent to testify as to the value of the goods.

Department 2. Appeal from Superior Court, Los Angeles County; S. E. Crow, Judge.

Action by Edith C. Hood against the Bekins Van & Storage Company. From a judgment for plaintiff and a denial of a new trial, defendant appeals. Affirmed.

R. T. Lightfoot, of Los Angeles, for appellant. Shepard & Alm, of Los Angeles, Shepard, Alm & Swenson, and Francis H. Boland, of San Francisco, for respondent.

VICTOR E. SHAW, Judge pro tem. Plain- "The general test, that any one familiar with tiff sued to recover the value of certain the values in question may testify, is liberally household goods which under an alleged ex-detailed minor tests. applied, and with few attempts to law down The owner of an article, press contract made with defendant were whether he is generally familiar with such to have been by it stored in a fireproof depos- values or not, ought certainly to be allowed to itory for a compensation agreed upon. The estimate its worth; the weight of his testimony (which often would be trifling) may be left to goods were stored in a nonfireproof building, the jury." wherein a fire occurred which destroyed the same. The court found the contract was made as alleged by plaintiff, and that the value of the goods deposited was the sum of $1,500, for which judgment was rendered in favor of plaintiff, and from which, and an order denying its motion for a new trial, defendant appeals.

[1] It appears that defendant had inserted in a telephone directory an advertisement that it was engaged, among other things, in the business of storing household goods and furniture for compensation, and that its warehouses and storage rooms were fireproof, the effect of which was well calculated to lead customers and persons dealing with it to believe that it was not only prepared to, but did, store the goods consigned to it by customers in fireproof depositories. It having been made to appear that plaintiff's agent, prior to making the alleged agreement, had read this advertisement, the same was, over defendant's objection, admitted in evidence. There was no error in this ruling. While the action was based upon an alleged express contract, in support of which direct evidence was offered, nevertheless, as stated in Lynch v. Bekins Van & Storage Co., 31 Cal. App. 68, 159 Pac. 822, wherein a like question was involved:

"The admission of evidence showing representations by advertisements and printed matter, to the effect that the defendant had at its disposal fireproof warehouses and offered to customers to furnish storage of that kind, was without error, as it tended to corroborate the evidence given by plaintiffs as to the express contract made and found by the court."

And in Kirstein v. Bekins Van & Storage Co., 27 Cal. App. 586, 150 Pac. 999, where the court was considering the point here made in a similar case, it was said:

"It was for the trial court to determine whether the witnesses were qualified to testify as to the value of the articles, and there is nothing disclosed by the record which would justify this court in setting aside its ruling in permitting the testimony, objections to which went to the weight rather than to the competency of the evidence."

To like effect is Willard v. Valley Gas & Fuel Co., 171 Cal. 9, 151 Pac. 286.

In our opinion, the three cases above cited are decisive of the questions presented upon this appeal.

The judgment and order are affirmed.

We concur: WILBUR, J.; MELVIN, J.

(178 Cal. 137)

ASEBEZ v. BLISS et al. (L. A. 4162.) (Supreme Court of California. April 15, 1918.) 1. TRIAL 345-VERDICT-WAIVER OF DE

FECTS.

In an action wherein defendant filed crosscomplaint against plaintiff and another, defendant waived defects in a verdict which did not mention the cross-defendant and was in improper form as to an item, where defects were not called to attention of the court before the jury Proc. § 619. was discharged as authorized by Code Civ.

2. APPEAL AND ERROR 1070(1)-HARMLESS ERROR.

Where a judgment in favor of plaintiff was necessarily a finding in favor of a cross-defendant and the plaintiff on a cross-complaint, the defendant cannot complain that the verdict did not mention his cross-action. 3. APPEAL AND ERROR 1033(8)-HARMLESS ERROR-AMENDING VERDICT.

A party is not aggrieved by an amendment reduces the amount of the judgment against of a verdict which decreases his liability and him.

Department 1. Appeal from Superior Court, Los Angeles County; Frederick W. Houser, Judge.

Action by E. Asebez against R. L. Bliss. Defendant answered and brought cross-action against plaintiff and Alvin Hitchcock. Judgment for plaintiff, and defendant appeals. Affirmed.

[2, 3] The only evidence offered touching the question of the value of the goods destroyed was that of plaintiff herself. Appellant insists not only that she failed to qualify as a witness competent to testify upon the subject, but that her testimony was so uncertain and contradictory that it was not entitled to any weight whatsoever in considering the question. The value of her evidence and weight thereof was a question for the determination of the trial judge. Her testimony, however uncertain and contradictory, was nevertheless the only evidence offered bearing upon the subject, and since it satisfied the trial judge that the value of the goods alleged in the complaint to be worth upwards of $3,000 was in fact $1,500, it is not the province of this court, upon a review thereof, to determine otherwise. As to the other objection, namely, that she was not qualRICHARDS, Judge pro tem. In this acified to testify, Mr. Wigmore, in his work on tion the plaintiff brought suit to recover the Evidence (section 716), in discussing the sub-purchase price of 78 cattle alleged to have ject, says: been sold and delivered to the defendant R.

Guy E. Maurice, of Los Angeles, for appellant. C. P. Kaetzel, of San Luis Obispo, and Hart & Cunningham, of Los Angeles, for respondents.

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