Grand Lodge, supra; Marshall v. Grand Metropolitan Life Ins. Co., 151 Cal. 746, Lodge, supra. The law in force at all times 751, 91 Pac. 609, 13 L. R. A. (N. S.) 866. No required as a condition precedent to rein- officer of the Head Camp had any knowlstatement the presentation of an applica- edge whatever as to the matter, no information including an express warranty of pres- tion even that there had been an attempted ent sound bodily health. As we have seen, reinstatement, until after the death of Valthe local camp clerk had no power by any entine. To our minds there is no escape act or course of conduct to waive the pres- from the conclusion that the attempted reentation of the application required by the instatement was ineffective for any purpose, law. The required application was one in and that Valentine was not in good standwhich the member was not only made to de- ing on August 22, 1912, when he died as the clare, "I certify, warrant and represent that result of the injury received on August 17, I am in good sound bodily health," but also 1912. that "I agree that this representation is a [5] Some reliance is placed upon the restrict warranty." The latter provision was tention by the local camp clerk of the monnot in fact contained in the application pre- ey paid by Mrs. Valentine upon the attemptsented on behalf of Valentine with the re- ed reinstatement, as constituting a waiver sult that the precise application required of all objections by defendant, or an estopby the law was not presented. The law pro- pel on it to dispute its effectiveness. In viding that "no attempted reinstatement by view of the circumstances of this case we the clerk of the camp without such rein- do not see the materiality of this fact. He statement application shall reinstate a sus- cannot be held to have received or to hold pended member or entitle his beneficiaries to possession of this money as a representative receive any benefit," it may well be claimed of the Head Camp; for, in view of his limthat for this reason alone there was no rein- ited authority, he had no power under the statement here. Certainly this claim is good circumstances to so receive or hold it. Beif the part omitted was at all material. But fore information or knowledge came to any we think that the application as presented officer of the Head Camp, upon which any contained such a warranty in the statement, claim of waiver or estoppel might be based, also required by law, that "I certify, warrant | Valentine had died. As held in Thompson and represent that I am in good sound bodily health." This statement clearly was one upon the literal truth or fulfillment of which the validity of the contract depended, and amounted to a warranty. See Hogins v. Supreme Council, 76 Cal. 109, 112, 18 Pac. 125, 127 (9 Am. St. Rep. 173); Caldwell v. Grand Lodge, 148 Cal. 195, 199, 82 Pac. 781, 2 L. R. A. (N. S.) 653, 113 Am. St. Rep. 219, 7 Ann. Cas. 356. This warranty as we have seen, was absolutely false. "By a warranty the insured stipulates for the absolute truth of the statement made" (Hogins v. Supreme Council, supra), and its falsity is necessarily a defense to the contract procured by the making thereof. There could be no effective reinstatement based upon an application containing a warranty that was in fact false, in the absence of an effective waiver of the falsity by the defendant Head Camp. Plaintiff relies upon the fact that the local camp clerk had knowledge of the falsity of the warranty. In view of what we have said as to the limitations on the power of the camp clerk, it is clear that this knowledge on the part of that officer is an immaterial factor. He could not by any course of conduct or possession of knowledge bind defendant in such a manner as to estop it from defending upon the ground that the warranty was false. This is substantially the effect of what is said in Elliott v. Frankfort Marine Ins. Co., 172 Cal. 261, 266, 156 Pac. 481, L. R. A. 1916F, 1026. In view of his limited powers, his knowledge was not v. Travelers' Ins. Co., 11 N. D. 274, 277, 91 N. W 75, 77, the rights of the parties became fixed upon the death and thereafter "no new contract between the parties by a waiver or estoppel could be created, as one of the contracting parties was dead." Subsequent conduct could not operate so as to affect the right to recover on the benefit certificate. This question is practically decided by what is said in Butler v. Grand Lodge. 146 Cal. 178, 179, 79 Pac. 861. It is proper to add that it does not appear that subsequent to the death of Valentine any Head Camp officer ever did anything or said anything which could by any possibility serve as a basis for a claim of waiver or estoppel, assuming that the necessary waiver or estoppel could be based on matters occurring after the death of the insured, or upon the acts or conduct of individual Head Camp officers. Our conclusion upon the points we have discussed renders unnecessary a discussion of many other claims of appellant. As is said by appellant's counsel in their brief, the fundamental basis upon which respondent must rest her reliance for an affirmance is that the local camp clerk was the agent of the Head Camp, with power to waive the requirements of its constitution. This basis not existing, her case must necessarily fail. There was an attempted appeal from the order denying a new trial, but the order was not made until after the change in our law orders. The order, however, may be review- | corporation had stated that such third person ed upon the appeal from the judgment. In was representing him. view of what we have said, the motion for a new trial should have been granted. The judgment is reversed. We concur: SHAW, J.; LENNON, J.; MELVIN, J.; WILBUR, J.; LAWLOR, J. NEWTON v. JOHNSTON ORGAN & PIANO (Supreme Court of California. April 4, 1919. Rehearing Denied May 1, 1919.) 1. CORPORATIONS 400-OFFICERS-RESTRIC TION OF APPARENT AUTHORITY. Where a corporation holds out to the world as its agents officers apparently clothed with power to transact its ordinary business, third parties will not be permitted to suffer from acts of such agents by corporation's attempted defense that ostensible authority was not in fact conferred, and, where a showing of ostensible agency was very strong, it could not be overthrown by mere proof that the by-laws or minutes of the corporation failed to disclose actual authority. 2. MASTER AND SERVANT 36-BREACH OF CONTRACT OF EMPLOYMENT - TENDER OF SERVICES. Under a contract of employment whereby employer was to give employé 30 days' notice of time for beginning work, employé could recover for breach of contract, although no formal call to work in 30 days had been sent, where employer wired him that he could go to work at any time and by its silence agreed that a certain time was a proper time and, after em ployé closed out his business in reliance thereon, countermanded order to report for duty, and it was not necessary that employé make a trip from Boston to California to make an actu al tender of his services. Department 2. Appeal from Superior Court, Los Angeles County; Fred H. Taft, Judge. Action by W. H. Newton against the Johnston Organ & Piano Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed. Frank Bryant, of Los Angeles, for appellant. Gibson, Dunn & Crutcher and Jas. A. Gibson, Jr., all of Los Angeles, for respondent. MELVIN, J. Plaintiff sued successfully for damages for violation of a contract of employment. Defendant appeals from the judgment. A contract in writing between the plaintiff and defendant was introduced in evidence. It was dated February 17, 1914, and recited that the Johnston Organ & Piano Manufacturing Company, a corporation organized under the laws of this state, has offered W. H. Newton, of Boston, Mass., employment as general superintendent of the corporation's factory at Van Nuys, for the term of three years, at a salary of $3,000 a year, payable $200 monthly in cash, and $600 in capital stock of the corporation at the end of each year's service; and that, in addition to de voting his time to the corporation's business, Newton was to assign all inventions made by him during his term of employment to the corporation. The agreement also contained the following language: "First party hereby agrees to employ second Second party to start work upon thirty days party under the terms hereinbefore expressed. notice by first party. Salary above specified to commence after second party has started to work at the factory at Van Nuys." 3. CORPORATIONS 432(9)-REPRESENTATION The instrument was subscribed by the BY OFFICER-EVIDENCE-BY-LAWS. name of plaintiff, by that of "Johnston Organ Where trial court based finding of agency and Piano Mfg. Co.," with the corporate seal exclusively upon ostensible agency of officers attached and the signatures of "E. S. Johnwho signed contract, it was not error to ex-ston, President,” and “A. E. Streeter, Secre clude minutes and by-laws offered by defendant corporation to show that the officers had not been authorized to execute the contract. 4. CORPORATIONS 57-BY-LAWS - NOTICE TO THIRD PERSONS. By-laws of a corporation are of no binding force upon third persons having no knowledge of them. 5. CORPORATIONS 432(8) — AGENCY-EVIDENCE-STATEMENTS OF ALLEGED AGENT. In an action against a corporation for breach of a contract, statements of a third person were admissible in evidence, over objection that such third person was not connected with the corporation, where the president of the tary." It appears from the testimony, without material contradiction, that before and after the execution of the written instrument, the plaintiff, who was an expert in the manufacture, repair, and selling of church organs and pianos, was engaged in lucrative business in Boston, Mass. He was approached by one A. P. Crandall, who represented himself as an employé of the defendant corporation, and they entered into negotiations relative to Mr. Newton's coming to California to become superintendent of the corporation's factory. After Crandall's return to California, plaintiff received a telegram from him For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the following day Mr. Streeter wired plaintiff that Mr. Johnston was very ill, and that the reason for the previous telegram was the unsettled financial condition. The telegram also contained the following sentence: "In fairness to yourself did not wish to have you come on until these conditions are satisfactorily settled which we anticipate shortly." On March 28th plaintiff wrote to Mr. Streeter, expressing regret at Mr. Johnston's illness. In this letter Mr. Newton informed Mr. Streeter that between March 1st and the 16th of that month he had done many acts, which he described, towards closing out his business in and around Boston. Receiving no answer to this letter, he wrote again on August 3, 1914, to defendant's attorney, informing that gentleman that he must know the true situation at Van Nuys, and requesting an immediate reply. None was ever received. asking plaintiff if he would come to Cali- [ney for the corporation, by which he sought fornia "to look the ground over" with a view information about the promised letter. On to entering the employ of the defendant corporation. This was followed by another message stating the probable amount of the salary of superintendent at the factory in Van Nuys, and asking how much money Mr. Newton would require for the expenses of the trip. Thereafter plaintiff received something more than $200-the amount he had specified as necessary for the expenses of the journey. He then went from Boston to Van Nuys. He was met at the car by Crandall, who escorted him to the factory of the Johnston Organ & Piano Company. There he met Mr. Johnston, president of the corporation, and Mr. Streeter, the secretary. Plaintiff conferred with them and with Mr. Bryant, who appears as counsel for defendant in this action. As a result of these conferences, the written contract drawn by Mr. Bryant was executed. Mr. Johnston told Mr. Newton that he wanted the new superintendent to enter upon his duties as soon as possible, but that the company wanted to get rid of the superintendent then in their employ be fore doing anything further. While he was in California, plaintiff's hotel bill was paid by the secretary of the defendant corporation. Mr. Newton returned to Boston, and on March 1, 1914, he telegraphed "E. S. Johnston or A. E. Streeter of the Johnston Organ and Piano Co.," asserting his anxiety to know how affairs were shaping themselves at the factory. This message elicited a prompt reply, which was in the following form: "Mar. 2, 14. "Wm. H. Newton, 4 Circuit Sq., Roxbury, Mass. "Can arrange matters so you can take hold here any time wire when you can be here. "Johnston Organ and Piano Mfg. Co." Plaintiff wired in reply that he was closing out his business and would go to work at Van Nuys on April 15th. Thereafter plaintiff busied himself in closing out his business and in making preparations for the contemplated trip to California. On March 6th he received a letter, ostensibly from the company, on its letter paper containing the names of E. S. Johnston, president, and A. E. Streeter, secretary, asking him to use his own judgment about a man seeking employment with the corporation. On March 16, 1914, the plaintiff received a telegram which was as follows: "Wm. H. Newton, 4 Circuit Sq., Roxbury, Mass. "Impossible to arrange matters here by fifteenth hold your affairs in abeyance until you hear further from us we are writing. "Johnston Organ Co." There was further testimony tending to corroborate plaintiff's representations that he had closed up his business affairs on the strength of his supposed engagement by the organ company. At the trial the defendant corporation called its secretary, Mr. Streeter, to identify its minutes and by-laws, and sought by him to show that the board of directors had never passed any resolution concerning the contract of employment, and that the president and secretary were not authorized to contract for the services of employés. [1] It seems to be the theory of defendant's counsel that one dealing with officers assuming to represent a corporation is chargeable with notice of its creation and powers and the real authority of the supposed officers or agents with whom he deals, and that he proceeds at his peril. If this were the true rule, the doctrine of ostensible agency would be swept aside entirely. That Johnston and Streeter were, respectively, the president and secretary of the corporation is conceded by the answer. It is admitted in appellant's briefs that by the introduction of the agreement, and of the names of the officers executing it on behalf of the corporation, plaintiff presented a prima facie case of due execution, but one (so runs the argument) subject to be overthrown by proof of the fact that original authority was lacking. But plaintiff did not merely introduce the contract. He showed that those persons assuming to act for the corporation were in fact in control of its property; that they had custody of and used its corporate seal; that they used its stationery; that they replied with apparent authority to telegrams directed to the corporation; that they, or No letter reached plaintiff, and on March one of them, paid his expenses while com [5] Appellant complains that the court admitted certain statements of one Crandall, and also letters and telegrams of Crandall to respondent, on the ground that Crandall had no connection with the corporation de fendant. But there was evidence that the president, Mr. Johnston, told Mr. Newton that Mr. Crandall had been acting as Johnston's representative in the matter. of course, Crandall's own declarations could not establish his agency; but his course of conduct, coupled with that of defendant's officers and the uncontroverted declaration of the president, justified the court in admitting the testimony and exhibits to which objection is made. Bergtholdt v. Porter Bros. Co., 114 Cal. 681-690, 46 Pac. 738. Besides, there was a complete case without the evidence relating to Crandall. Plaintiff sued for a sum equal to salary for three years, minus an amount something more than seven hundred dollars. Judgment was for $3,000, which seems to have been correctly fixed by following the rule laid down in Seymour v. Oelrichs, supra. daily consultation at the factory, and while | ing no knowledge of them. Rathbun v. Snow, returning to Boston; and that generally they 123 N. Y. 343, 25 N. E. 379, 10 L. R. A. 355; held themselves out as the authorized rep- Anglo-Californian Bank v. Grangers' Bank, resentatives of the corporation in such man- 63 Cal. 359. ner that the company and its directors could not well have been ignorant of their assumption of ostensible power. Where a corporation holds out to the world as its agents persons apparently clothed with power to transact its ordinary business, third parties will not be permitted to suffer from the acts of such agents by the corporation's attempted defense that the ostensible authority was not in fact conferred. Dore v. Southern Pacific Co., 163 Cal. 182, 124 Pac. 817; Stevens v. Selma Fruit Co., Inc., 18 Cal. App. 242, 123 Pac. 212; Aigeltinger v. Burke, 176 Cal. 621, 169 Pac. 373. The showing of ostensible agency was very strong and could not be overthrown by mere proof that the by-laws or minutes of the corporation failed to disclose | actual authority of the president and secretary to contract for services of employés. [2] It is argued that plaintiff could have no cause of action until he had received the notice to come to Van Nuys in 30 days and had actually reported there for work; and that he may not recover on the quantum meruit until he has actually and physically tendered his services. Answering the last contention first, it is sufficient to say that this is not an action for wages or for work done, but one for damages for breach of a contract to employ plaintiff. It is governed by the rules declared in such cases as Seymour v. Oelrichs, 156 Cal. 782, 106 Pac. 88, 134 Am. St. Rep. 154. The statement that no formal call to work in 30 days had been sent is met by the fact that defendant wired plain- GARN v. THORWALDSON, Sheriff, et al. tiff that he could go to work at any time and by its silence agreed that April 15th was a proper time. Evidently, the employment was considered settled because plaintiff was consulted regarding the hiring of one who was to be his subordinate in the factory. By closing his business in Boston and preparing for the trip to California plaintiff made a sufficient tender of his services. It would have been idle for him to make the trip to California after defendant had countermanded the order to report for duty. The gist of his action was his change of position caused by the conduct of defendant. Seymour v. Oelrichs, supra. No other alleged errors require examination. The judgment is affirmed. We concur: LENNON, J.; WILBUR, J. 1. PLEADING (Civ. 2508.) (District Court of Appeal, First District, Divi- Assignment for benefit of creditors, though failing to comply with requirements of Civ. Code, §§ 3449-3473, is valid against the assignor and all creditors assenting to it, and serves to [3, 4] As the trial court based its finding vest the assignor's title to the property in the assignee, being void at most only against credof agency exclusively upon the ostensible itors not assenting thereto, and against purchasagency of the officers who signed the contracters and incumbrancers in good faith and for of employment, it was not error to exclude the minutes offered by appellant to show that the president and secretary had not been authorized to employ a superintendent. Dore v. Southern Pacific Co., supra. The by-laws were also properly excluded for the same reason and for the further one that they are of no binding force upon third persons hav value. 3. FRAUDULENT CONVEYANCES 179(1), 181 (1)-NONDELIVERY-EFFECT. Sale of personal property, though not fol lowed by immediate delivery and actual and continued change of possession, as required by Civ. Code, § 3440, is not a nullity, but is good against all the world except seller's creditors, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and is good against such creditors, except when | of any and all of the property transferred to attacked in legal proceedings for the collection him; to collect the choses in action and settle of their debts. 4. FRAUDULENT CONVEYANCES DELIVERY-TITLE OF BUYER. 186-NON Where sale of personal property is not followed by immediate delivery and actual and continued change of possession, as required by Civ. Code, § 3440, buyer acquires good title as against all the world, except creditors of original seller, and against them also, if he is a purchaser in good faith, for value, and without notice, since the seller, being the owner, can convey title. 5. ASSIGNMENTS FOR BENEFIT OF CREDITORS 45-VALIDITY OF ASSIGNMENT-RIGHTS OF ASSIGNOR'S CREDITOR. Assignment for benefit of creditors did not become void as to creditor of the assignor, although assignment was not followed by immediate delivery to assignee and actual and continued change of possession, as required of transfer of personal property by Civ. Code, § 3440, since such statute is expressly made inapplicable to assignments for benefit of creditors. and compromise all claims and demands- At The assignment was jointly and severally Appeal from Superior Court, Fresno Coun- to pay its franchise tax. ty; Geo. E. Church, Judge. Action by P. W. Garn against Horace Thorwaldson, as Sheriff of the county of Fresno, and another. Judgment for plaintiff, and defendants appeal. Affirmed. H. E. Barbour, of Fresno, for appellants. Edmund Tauszky, of San Francisco, and Johnston & Jones, of Fresno, for respondent. WASTE, P. J. The defendant Thorwaldson, as sheriff of Fresno county, sold a quantity of oil well casing, after third party claim duly made on him by the plaintiff here, under execution issued out of the superior court of that county, on a judgment in favor of one J. W. Moore, plaintiff, and against J. M. Hendrickson et al., as trustees to settle the affairs of the Blair Oil Company, after charter forfeited, defendants. The plaintiff here brought this action against the sheriff and the other defendant, the surety on his official bond, for damages for the conversion. Judgment went for the plaintiffs, and defendants appeal. [1] When the present case came on for trial in the lower court, in addition to showing the foregoing facts, the plaintiff introduced considerable testimony tending to show. that the transfer of the property, by the oil company to the trustee, was accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred. This evidence was offered apparently, for the purpose of showing that the requirements of section 3440 of the Civil Code, relating to fraudulent transfer of personal property had been complied with. The allegations of the complaint setting forth the due proceedings culminating in the execution sale were admitted by failure to deny, and the only issue presented by the pleadings was as to validity of the assignment to Garn, the trustee, and his claim of ownership of the personal property. Defendants thereupon sought to show that on August 26, 1913, six months after the forfeiture of the charter of the oil company, and a year and a half after the making of the assignment by the company to Garn, J. W. On February 12, 1912, the said Blair Oil Hendrickson, who at all times, up to the forCompany, being indebted to various creditors feiture of the charter by the corporation, had in an amount in excess of $20,000, duly ex- been its president and one of its directors, ecuted and delivered to Garn, the plaintiff and at that time therefore one of its trushere, an instrument in writing whereby it tees, by operation of law, to settle up its did "grant, sell, assign, transfer, convey and affairs, had employed J. W. Moore to go, and set over" unto him its real property in Fres- that he did go, upon the real property which no county, together with all the improve- was described in the assignment, and take ments, and personal property, "of whatever possession and control of the personal propkind and nature" thereon, also all its leases, erty thereon, and watch and preserve the contracts, claims, and accounts connected same for, and as the possession of, the Blair therewith. This conveyance, or assignment, Oil Company; that, as the employé and servwas made to Garn, in trust, to develop and ant of the Blair Oil Company, said Moore operate said land; to manage, sell and dispose remained in possession and control of the |