[L. A. No. 7341. In Bank.-February 20, 1923.]

LOUISA C. MASON, Appellant, v. ROBERT E. MASON, Respondent.

[1] APPEAL-CONFLICTING EVIDENCE-APPEAL WITHOUT MERIT.-Where the evidence is conflicting, an appeal from a judgment on the ground that the evidence is insufficient to justify it is without merit.

APPEAL from a judgment of the Superior Court of Los Angeles. Charles S. Burnell, Judge. Affirmed.

The facts are stated in the opinion of the court.

Willedd Andrews for Appellant.

A. C. Routhe for Respondent.

WILBUR, C. J.-Plaintiff and defendant were husband and wife at the time the plaintiff executed a deed to the defendant on May 22, 1920. They were divorced June 30, 1920. Plaintiff brings this action to set aside the deed on the ground that it was procured by duress. Judgment having been rendered in favor of the defendant, plaintiff appealed claiming that the evidence is insufficient to justify the judgment. The evidence is conflicting and for that reason the appeal is without merit. [1] It is apparent from an inspection of the plaintiff's brief that the appeal was not taken in good faith and was taken for delay only. The defendant should be allowed damages for frivolous appeal. Judgment affirmed with $250 damages to be entered as costs in the trial court.

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

[Crim. No. 2551. In Bank.-February 20, 1923.]

In the Matter of the Application of JOHN FRANKOVITCH for a Writ of Habeas Corpus.

[1] CRIMINAL LAW INTOXICATING LIQUORS - WRIGHT ACT - JUDGMENT. A judgment upon a conviction under the Wright Act that the defendant "pay a fine of $500 or be confined in the City Jail for the period of six months upon his failure to pay said fine," is one imposing a sentence for six months, giving the party convicted the opportunity of escaping such punishment by the payment of a fine, and is valid.

APPLICATION for a Writ of Habeas Corpus to release one convicted of violation of the Wright Act. Writ denied. The facts are stated in the opinion of the court.

J. Morgan Marmaduke for Petitioner.

THE COURT.-Petitioner seeks the release of John Frankovitch on habeas corpus. Frankovitch was convicted of selling liquor in violation of the Wright Act (Stats. 1921, p. 79), "and judgment was passed upon him to this effect: that he, the said John Frankovitch, was to pay a fine of $500.00 or be confined in the City Jail for the period of six months upon his failure to pay said fine." On February 13, 1923, Frankovitch notified the trial court that he was unable to pay the fine or any part thereof, whereupon he was committed to the county jail for the period of six months. The Volstead Act (41 Stat. 305) provides that for the first offense the person who sells liquor shall be fined not more than a thousand dollars, or suffer imprisonment not exceeding six months. It is claimed that this provision, adopted by our Wright Act, does not justify the alternative judgment imposed upon Frankovitch, because such judgment, in effect, provides for imprisonment for the nonpayment of the fine. [1] On the other hand, we think the judgment, properly construed, is one imposing a sentence of imprisonment for six months, but gives the party convicted the opportunity of escaping such punishment by the payment of a fine. Having failed to pay the fine he is in no position to complain of the imprisonment.

Writ denied.

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

[L. A. No. 7284. In Bank.-February 20, 1923.] KATHERINE O. KLUSMAN et al., Appellants, V. PACIFIC ELECTRIC RAILWAY COMPANY, a Corporation, et al., Respondents.

[1] NEGLIGENCE-CROSSING CAR TRACK-CARE.-One who is about to cross a car line, if she knows that cars are operated in both directions on the tract, is bound in the exercise of ordinary care to look in both directions before stepping upon the tract, and if she does not know that cars are operated in both directions, she is negligent in assuming that they are only operated in one direction without taking the precaution to look in the other direction as well, and in either event in failing to take these precautions she is guilty of contributory negligence as a matter of law, which will prevent her from recovering for injuries sustained by being struck by a car.

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Monroe, Judge. Affirmed.

The facts are stated in the opinion of the court.

Frank A. McDonald and Gesner Williams for Appellant.

Frank Karr, R. C. Gortner and W. R. Millar for Respondents.

WILBUR, C. J.-The plaintiff Katherine O. Klusman stepped upon the track of the defendant Railway Company in front of a north-bound interurban train going from Los Angeles toward Glendale. The accident occurred at the intersection of Berkeley, Alvarado, and Glendale Boulevard, in Los Angeles. This action was brought to recover the damages sustained by the plaintiffs as a result of the collision. Defendant's motion for a nonsuit was granted and a judgment in their favor entered and plaintiffs appeal. The defendant Railway Company owns a three-track system of railway at the scene of the accident. The middle. track is used by the outgoing and incoming interurban cars, the easterly track by north-bound and the westerly track by south-bound local cars traveling from Los Angeles to Edendale, terminating at the street intersection where the accident occurred. According to the testimony of the plain

tiff she alighted from the north-bound Edendale car after it had stopped at its terminus, walked south along the side of the car, passed around the end of the car in which she had been riding, stepped upon the middle track, and was almost instantly struck by a car proceeding in the same direction as the car in which she had just arrived. She testified that a second car upon the local line had arrived and was standing about sixty feet in the rear of the car from which she alighted and that the headlight thereon was burning brightly, illuminating the scene of the accident. The plaintiff testified that after arriving at the rear of the car in which she had been riding she turned to the west and proceeded without looking toward the south at all and was not aware of the approach of the car from the south until she was struck by it. She testified that it was a drizzly damp night and that it seemed very dark; that she had visited the place where the accident occurred a number of times and admitted that she knew there were three tracks there, but stated she was not very familiar with that fact; that she had gone there in the evening and had paid very little attention to the tracks.

[1] If the plaintiff knew that cars were operated on the middle track in both directions she was bound in the exercise of ordinary care to look in both directions before stepping upon the track. If she did not know that cars were operated in both directions upon the middle track she was negligent in assuming that cars were only operated in one direction without taking the precaution to look in the other direction as well. From either point of view the conclusion of the trial court that she was guilty of negligence as a matter of law was correct.

Judgment affirmed.

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

[L. A. No. 7442. In Bank.-February 21, 1923.]

C. C. BERGER et al., Appellants, v. R. B. LANE, Re

spondent.

[1] ACCORD AND SATISFACTION DISPUTED CLAIM ACCEPTANCE OF AMOUNT LESS THAN CLAIM.-The general rule is that where the amount due on a claim is in dispute and a check for less than that amount is sent to the creditor with a statement that it is sent in full satisfaction of the claim, and the tender is accompanied by such acts or declarations as amount to a condition that if the check is accepted at all it is accepted in full satisfaction of the disputed claim, and the creditor so understands, its acceptance by the creditor constitutes an accord and satisfaction even though the creditor states at the time that the amount tendered is not accepted in full satisfaction.

[2] ID. PLEADING.-The general rule is that he who relies upon an accord and satisfaction must plead and prove both.

[3] ID.-HONESTY OF DISPUTE.-While it is not necessary that the dispute or controversy should be well founded, it is necessary that it should be founded in good faith in order that an accord and satisfaction may result. Without an honest dispute an agreement to take a lesser amount in payment for the liquidated claim is without consideration and void. An arbitrary refusal to pay, based on the mere pretense of the debtor, whether for the obvious purpose of exacting terms which are inequitable and oppressive, is not such a dispute as will satisfy the requirements of the rule. [4] BROKERS' COMMISSIONS-ACTION TO RECOVER-NONSUIT-ACCORD AND SATISFACTION.-A nonsuit is improperly granted in an action to recover a broker's commission on the sale of real estate, on the theory that there has been an accord and satisfaction in the acceptance of a check in an amount less than the claim, where the written contract authorizing the agents to sell the property provides for payment to them of a commission equal to the amount of the claim, the validity of the contract is not disputed, the amount fixed as commissions is not denied, it is admitted that plaintiffs were the procuring cause of the sale, no modification of the contract of agency is claimed, and the circumstances do not show anything upon which a disputed claim might be predicated.

[5] CONTRACTS-COMPROMISE CONSIDERATION.-A mere refusal to pay cannot be made the basis of a consideration for a compromise in the absence of a bona fide dispute.

[6] ID. DISPUTED CLAIM-TENDER OF LESSER AMOUNT-SATISFACTION QUESTION OF FACT.-Whether there is a dispute concerning the