An easy computation discloses that the grapes received by the appellants under the original contract have been fully paid for. The present action is, in effect, one in assumpsit for the agreed value of the grapes delivered under the oral agreement. (Castagnino v. Balletta, 82 Cal. 250, 258 [23 Pac. 127].) The evidence fully supports the findings of the trial court, which in turn uphold the judgment.

[2] After the evidence was closed, but before decision, the trial court permitted the respondent to amend her third amended complaint and her amended answer to the second amended cross-complaint of the appellants by setting up the mutual abandonment of the written agreement by the parties-the allegation theretofore having been merely that the parties "entered into an oral agreement in alteration of said written agreement." Appellants sought to demur and to answer to respondent's pleadings as amended, claiming that a new cause of action and a new defense were set up The demurrers and the answer were stricken from the files. Appellants were not prejudiced by this action. As we read the record, the amendment, in effect, was merely one to conform to the proofs. Assuming that an additional issue was tendered by the amendment, we cannot see how the testimony in the case could have been different from that already introduced. All the facts were before the court, and its findings conclusively establish the liability of the appellants, irrespective of whether the issue was one of an alteration of the written contract or its entire abandonment, and the substitution of the oral agreement.

The judgment is affirmed.

Wilbur, C. J., Myers, J., Seawell, J., Kerrigan, J., Lawlor, J., and Lennon, J., concurred.

Rehearing denied.

All the Justices concurred.

[Crim. No. 2542. In Bank.-January 24, 1923.]

In the Matter of the Application of ANDREW MORCK for a Writ of Habeas Corpus.

[1] CRIMINAL LAW-ATTEMPT TO COMMIT ROBBERY-TERM OF SENTENCE. Under the provisions of sections 664 and 671 of the Penal Code, the trial court has authority to sentence a defendant for an attempt to commit robbery for any term of years which in its opinion will be a just and fair punishment.

APPLICATION for a Writ of Habeas Corpus to obtain release from state prison. Denied.

The facts are stated in the opinion of the court.

Andrew Morck, in pro. per., for petitioner.

THE COURT.-The petitioner asks for a writ of habeas corpus, alleging that he is serving a sentence in the state prison at San Quentin for an attempt to commit robbery. He does not allege the term of his sentence, but alleges that he has already served, counting allowance for good credits, more than nine years, and asserts "that nine years constituted more than his half-life at the time of his commitment." [1] The case of People v. Sama, 189 Cal. 153 [207 Pac. 893], decided June 16, 1922, held that under the provisions of sections 664 and 671 of the Penal Code the trial court had authority to sentence a defendant for an attempt to commit robbery for any term of years which in its opinion would be a just and fair punishment. It appears from a previous application of the petitioner (In re Morck, 180 Cal. 384 [181 Pac. 657]), that he was sentenced for the term of twentyfive years. This sentence was valid (People v. Sama,

supra).

The petition for the writ is denied.

Wilbur, C. J., Kerrigan, J., Waste, J., Myers, J., Lawlor, J., Lennon, J., and Seawell, J., concurred.

[Crim. No. 2543. In Bank.-January 25, 1923.]

In re Application of ERNEST B. D. SPAGNOLI for a Writ of Habeas Corpus for HELEN VON.

[1] CRIMINAL LAW-COMMITMENT TO INDUSTRIAL FARM FOR WOMENRECORDS OF POLICE COURT SILENCE AS TO AGE EFFECT OF.-A woman committed by a police court to the Industrial Farm for Women is not entitled to release on habeas corpus upon the ground that it nowhere appears upon the court records that she was over the age of eighteen years, since jurisdiction of an inferior court may be shown by evidence dehors the record.

APPLICATION for a Writ of Habeas Corpus to obtain release from Industrial Farm for Women. Denied.

The facts are stated in the opinion of the court.

E. B. D. Spagnoli, in pro. per., for Petitioner.

THE COURT.-Petitioner applies for a writ of habeas corpus on behalf of Helen Von. The police court of San Francisco committed Helen Von to the California Industrial Farm for Women in Sonoma County. Petitioner claims that it nowhere appears upon the records of the police court that Helen Von was over the age of eighteen years and claims that in the absence of such affirmative showing she must be released notwithstanding the fact that she may be over eighteen years of age. [1] The point is not well taken. In this state jurisdiction of an inferior court may be shown by evidence dehors the record. (Jolley v. Foltz, 34 Cal. 321; Kane v. Desmond, 63 Cal. 464, 466; Ferguson v. Basin Consolidated Mines, 152 Cal. 712, 715 [93 Pac. 867]; Gardella v. County of Amador, 164 Cal. 555, 561 [129 Pac. 993].)

Petition denied.

Wilbur, C. J., Lawlor, J., Lennon, J., Waste, J., Seawell, J., Kerrigan, J., and Myers, J., concurred.

190 Cal.-23

[L. A. No. 7268. In Bank.-January 29, 1923.]

In the Matter of the Estate of MARGARET T. CLARK, Deceased. ELIZABETH DAVIS, et al., Appellants, V. JESSIE CLARK NEWTON, Respondent.

[1] ESTATES OF DECEASED PERSONS-DECREE OF DISTRIBUTION-APPEAL BY HEIRS.-Where an administrator refuses to appeal from a decree of final distribution in an estate in which his intestate is interested, the heirs may maintain the appeal.

[2] ID.-ACCEPTANCE OF DISTRIBUTED PORTION — RIGHT OF APPEAL.— The acceptance by heirs of the portion of an estate distributed to them does not preclude them from maintaining an appeal for the purpose of establishing a greater claim, where they are entitled to the accepted portion in any event.

[3] ID.-SUCCESSION AS STATUTORY HEIR CHARACTER OF PROPERTYJUDGMENT ESTOPPEL-A judgment for the defendant in an action by the administrator of the estate of a husband against the administrator of the estate of the wife to recover property wherein the sole and only issue raised by the pleadings and adjudicated in the action was whether or not the property was the separate property of the husband at the time of his death, or had become prior thereto the separate property of the wife, is conclusive upon the sister of the husband claiming the right upon distribution of the wife's estate to succeed to such property as statutory heir under subdivision 8 of section 1386 of the Civil Code on the theory that it came to the wife by descent from her deceased husband.

[4] ID.-JUDGMENT AGAINST ADMINISTRATOR EFFECT UPON HEIRS.An adverse judgment in an action prosecuted by an administrator to recover the possession of property alleged to belong to the estate is not only binding upon him but also upon the heirs, since a judgment concludes not only the adverse party but all those claiming under the title which he represents.

[5] JUDGMENTS-ESTOPPEL.-A judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies whenever the existence of that fact is again in issue between them, not only when the subject matter is the same, but when the point comes incidentally in question in relation to a different matter in the same or any other court.

APPEAL from a part of a decree of final distribution of the Superior Court of Los Angeles County. John M. York, Judge. Reversed.

The facts are stated in the opinion of the court.

George K. Ford and Arthur Wright for Appellants.

James S. Bennett for Respondent.

LENNON, J.-Margaret T. Clark, a resident of Los Angeles County, died intestate on September 9, 1914, leaving surviving her an aunt, Arvilla Armstrong Grover, a sister of said Margaret T. Clark's mother, and also Jessie Clark Newton, a sister of said Margaret T. Clark's deceased husband. Frank Bryson, public administrator, is the duly qualified and acting administrator of the estate of the deceased, which admittedly consisted entirely of personal property derived from Frank E. Clark, husband of the deceased Margaret T. Clark, and which came to him by inheritance from the estate of his mother.

Subsequent to the death of Margaret T. Clark, her aunt, Arvilla Armstrong Grover, died, leaving as her heirs nine children and five grandchildren, the appellants herein, all of whom reside outside of the state. On the twentieth day of October, 1921, Frank Bryson, public administrator, was appointed and ever since has been the duly qualified and acting administrator of the estate of said Arvilla Armstrong Grover, deceased.

A petition for distribution was filed by Bryson, as administrator of the estate of Margaret T. Clark, deceased, alleging that "the next of kin and heirs at law of said deceased are unknown" and praying that said estate be distributed "to the persons entitled thereto."

The children and grandchildren of Arvilla Armstrong Grover, deceased, the appellants herein, as the successors in interest of said Arvilla Armstrong Grover, deceased, presented their petition for distribution, to them, of the entire estate of said Margaret T. Clark, deceased, upon the ground that said Arvilla Armstrong Grover was the only heir at law of said Margaret T. Clark, deceased.

The petition of appellants that all of the estate of Margaret T. Clark, deceased, be distributed to them was opposed by Jessie Clark Newton upon the ground that the property in controversy, at the time of the death of Frank E. Clark, was his separate property and having come to said Margaret