CONTRACTS (Continued). and its findings conclusively established the liability of the defendants, irrespective of whether the issue was one of an alteration of the written contract, as alleged in the original pleadings, or its entire abandonment and the substitution of the oral agreement.-Id. 10. RESCISSION-ACTION FOR BREACH OF CONTRACT.-An action cannot be maintained for an alleged breach of a contract for the sale of personal property, where the evidence shows that the contract was rescinded by mutual consent of the parties.-Wardlow v. Sanderson, 417. 11. SALE RECOVERY OF PURCHASE PRICE RESCISSION.-Recovery of the purchase price of certain personal property cannot be had by the purchaser on a count for money had and received for his benefit, where he was not entitled to and did not rescind the sale. Id. 12. WARRANTY.-A mere contract of sale or agreement to sell does not imply a warranty, except as prescribed in the article of the Civil Code relating to warranties of sales.-Id. 13. RULE OF INTERPRETATION.-The rule of interpretation is that the whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.-Mah See v. North American Acc. Ins. Co., 421. 14. SALE OF WATER-LACK OF MUTUALITY IN CONTRACT.-A contract to allow the use of water, considered as a contract for the sale of personal property, is lacking in mutuality where there is no agreement on the part of the user to buy the water offered for sale by the contract.-Schimmel v. Martin, 429. 15. UNCERTAINTY IN TIME-VOID CONTRACT.-A contract to allow the use of water is void for uncertainty where no time is specified to which the agreed rate is to apply.-Id. 16. RIGHT TO USE WATER-REAL PROPERTY.-The right to water to be used for irrigation is a right in real property.—Id. 17. 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.-Berger v. Lane, 443. 18. DISPUTED CLAIM - TENDER OF LESSER AMOUNT SATISFACTION QUESTION OF FACT.-Whether there is a dispute concerning the amount due on a claim and whether a tender made on condition that acceptance will be in full satisfaction, are primarily questions of fact for the trial court.-Id. 19. LIABILITY OF PARTIES SUBMISSION TO JURY-INSTRUCTIONS.In such a case it was error for the court to submit to the jury the question of the liability of the record owner on the agree CONTRACTS (Continued). ment, and an instruction in effect that if the jury found from the evidence that she had knowledge of the agreement prior to the exchange, and acquiesced therein and received the benefits thereof, she would be liable upon the agreement executed in his own name by the one claiming a beneficial interest in the land, notwithstanding the former was the sole owner and the written agreement did not purport to refer to her as a party to be bound thereby, was erroneous.-Bloom v. Coates, 458. 20. RESCISSION.-The interposition of a court of equity to set aside a contract is not necessary to rescission. A contract may be rescinded by the act of the party entitled and desiring to rescind. McNeese v. McNeese, 402. 21. RESTORATION GIFT.-Where nothing is received under a contract, an offer to restore on rescission is impossible, and where property is transferred by gift there can be no question that an offer to restore is unnecessary.-Id. 22. NOTICE OF RESCISSION-FORM.-It is not necessary that notice to rescind a contract shall be formal and explicit; it is sufficient that notice shall be given to the other party which clearly shows the intention of the person rescinding to consider the contract at an end. Id. 23. DEMAND FOR RETURN OF PROPERTY. A demand by plaintiff's guardian for the return of property before bringing an action in claim and delivery to recover it is sufficient notice of rescission of the contract under which it was delivered.-Id. 24. CLAIM AND DELIVERY ISSUES INCOMPETENCY-RESCISSION-EVIDENCE HYPOTHETICAL QUESTIONS.-In an action in claim and delivery, brought by the guardian of the estate of one alleged to be incompetent, to recover possession of personal property alleged to have been taken by defendant while plaintiff was incapable of taking care of himself or of consenting to the taking, the question of whether or not, at the time of an alleged rescission of a contract under which defendant claims the property, plaintiff was entitled, because of his incompetency, to rescind, is embraced within the issues, and it is error for the court to exclude evidence offered by plaintiff of facts upon which to base hypothetical questions to show incompetency.-Id. 25. CONTRACT OF PURCHASE ACKNOWLEDGMENT-RECORDATION-NOTICE.-Acknowledment by the vendees alone under a contract of purchase of real property is insufficient to give the successors of the vendor the constructive notice which would otherwise result from the recordation after proper acknowledgment by the vendor. Keese v. Beardsley, 466. 26. RECORDING-BOOK OF DEEDS.-A contract for the purchase of real property can properly be recorded in the book of deeds.-Id. CONTRACTS (Continued). 27. NOTICE-POSSESSION OF PROPERTY - FINDINGS.-Where vendees of real property, who had taken possession of and made improvements upon the property were thereafter temporarily absent therefrom, it is for the trial court to determine whether the possession was of such character as to give notice of the rights of the vendees or put others upon inquiry with reference thereto, and to find the ultimate fact of notice in an action to foreclose a mortgage which involves the question of priorities as between the mortgagee and the vendees of the property.-Id. 28. UNCERTAINTY CONSTRUCTION INTENT. The law does not favor the lease against the destruction of contracts because of uncertainty; and it will, if feasible, so construe agreements as to carry into effect the reasonable intention of the parties if that can be ascertained.-McIllmoil v. Frawley Motor Co., 546. 29. SUBJECT MATTER-DESCRIPTION EVIDENCE.-The description of the subject matter of an agreement may be indefinite, and yet if it is capable of being identified and rendered definite and certain by evidence aliunde the contract is enforceable.-Id. 30. UNCERTAINTY-VALIDITY OF CONTRACT.-A contract to purchase an automobile of a certain make is not void for uncertainty, although the particular model of that make is not specified, nor the price to be paid therefor, nor the time of payment, where the purchaser has the selection of one of several models, the price of each model being fixed and standard.-Id. 31. PAYMENT -TIME.-Where one buys personal property at an agreed price he by implication of law agrees to pay the price; and if no time of payment is agreed upon the law fixes the time of delivery as the time of payment. If the time of delivery is postponed until the occurrence of some act to be done by the seller, the time of payment, if not otherwise provided for, will be postponed by implication of law to the time of such delivery. Id. 32. CONSTRUCTION-INTENT - - EVIDENCE OF CIRCUMSTANCES.-For the purpose of arriving at the true intent of the parties, a contract is always to be construed in the light of the circumstances surrounding them at the time of its making.-Id. See Accord and Satisfaction, 3; Appeal, 26; Arbitration, 1, 2; CONVEYANCE. See Deeds and Deeds of Trust. CORONERS. See Evidence, 1. CORPORATIONS. PROFIT-SHARING SECURITIES-ILLEGAL INCREASE OF STOCK-MANDAMUS. On this application for a writ of mandamus to compel the state corporation commissioner to pass upon petitioner's application for approval of a plan for issuing profit-sharing securities, it is held that the scheme is one for increasing of the capital stock of the corporation without compliance with the laws relating to such increase of stock. Apartment Bldg. Co. v. Daugherty, 521. See Appeal, 21; Dedication, 1; Promissory Notes, 3; Protection Districts, 1; Public Utilities, 2, 5. COSTS. See Attachment, 1; Divorce, 8; Irrigation Districts, 2. COUNTIES. RESIDENCE AND GARAGE FOR COUNTY PHYSICIAN POWER OF SUPERVISORS. Under subdivision 7 of section 4041 of the Political Code authorizing boards of supervisors, among other things, to construct hospitals and almshouses and such other public buildings as may be necessary to carry out the work of county government, they have the power to construct a residence and garage at the county hospital for the county physician in charge thereof if in their judgment the proper management and control of the hospital requires such construction.-Forward v. County of San Diego, 202. COURTS. 1. RECORDS CORRECTION. Courts have inherent power over their records, and may at all times correct mere clerical errors made by the clerk in entering an order in the minutes, so that it may truly state what was the order of the court, by setting forth all its terms; and any correction or amendment of the record is conclusively presumed to have been properly made, when such record is collaterally drawn in question, or is used as evidence, or relied upon in support of any other proceeding.-Halpern v. Superior Court, 384. 2. APPEAL-POWER TO AMEND RECORD.-The right of a lower court to amend its record to conform to the truth is not suspended or impeded by an appeal, where the amendment does not affect any substantial rights of the appellant, and consists of the correction of a clerical mistake appearing upon the face of the record. The same rule should apply where the lower court has found that the COURTS (Continued). record discloses that the entry on the minutes does not correctly give what was the order of the court.-Id. 3. NEW TRIAL-AMENDMENT OF ORDER GRANTING CERTIORARI.—Where the superior court made an order purporting to amend, nunc pro tunc, its previous order granting a new trial by adding to it the ground of insufficiency of the evidence to justify the verdict, the contention that the omission does not appear from the record, and that the amendment, in fact, amounted to the correction of a judicial error affecting the substantial rights of the appellant because it changed the effect of the order granting the new trial and was made after appellant had taken an appeal, cannot be maintained in a proceeding in certiorari.—Id. 4. LACK OF NOTICE- JURISDICTION. The contention by the petitioner that as he had no notice, by motion or otherwise, of the ex parte application, and of the action of the trial court in amending the order granting the new trial, such action of the court was in excess of jurisdiction, cannot be maintained in a proceeding in certiorari, but relief should have been applied for in the trial court and if denied an appeal taken.-Id. See Arbitration, 1; Declaratory Relief, 1, 2; Juvenile Court. CRIMINAL LAW. 1. MURDER-PREMEDITATION-TIME.-To constitute murder in the first degree there need be no appreciable space of time between the intention to kill and the act of killing. They may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation, on the part of the slayer, and if such is the case, the killing is murder of the first degree, no matter how rapidly these acts of the mind succeed each other, or how quickly they may be followed by the act of killing.-People v. Donnelly, 57. 2. INSTRUCTIONS - INTENT.-In a prosecution for murder there is no error in refusing to give an instruction on the subject of intent where the subject matter was fully covered by other portions of the charge and the court very carefully instructed the jury on every phase of murder, special attention being given to the degree of deliberation and premeditation necessary to constitute murder in the first degree.-Id. 3. SELF-DEFENSE. - In a prosecution for murder there is no error in refusing an instruction on the question of self-defense where the proposed instruction covers much not included in the testimony and is against law in certain particulars, the court having elsewhere stated the law in relation to self-defense correctly and having fully covered the subject.-Id. |