In 1884, Emma J. McKay, then the wife of the petitioner, had obtained a decree of divorce from her husband. The decree awarded her the care, custody, and control of the minor children of the marriage, but contained no provision for alimony for their maintenance and support. In May, 1898, Emma J. McKay, who had since remarried, filed, in the action in which the decree of divorce, had been granted, a petition praying an order to compel the defendant in that action to pay $50 a month for the past support of each of the children and $50 a month for the future support of each of them until the further order of the court. The order was made, and the defendant appealed therefrom, giving a bond to stay execution. Thereupon the wife obtained from the superior court an order directing the defendant to pay the sum of $250 as attorney's fees to enable the minors to properly present their response to the appeal. The defendant applied to this court for a writ of review to annul the order last made. In passing upon his application this court deemed it necessary to consider the validity of the order requiring the payment of money for the support of the minor children, and determined that that order was not beyond the jurisdiction of the superior court. This conclusion was based upon the provisions of section 138 of the Civil Code, which was held to expressly vest in the superior court the power to make, before or after judgment, such order as might seem proper for the maintenance of minor children. Erkenbrach V. Erkenbrach, 96 N. Y. 456, and other cases are cited in support of this view. The court points out the distinction between the case before it and Howell v. Howell, supra, in which case, as was said, "section 138 of the Civil Code and the rights of minor children to maintenance and support under it were not before the court."

The order considered in McKay v. Superior Court was again the subject of consideration in McKay v. McKay, 125 Cal. 65, 57 Pac. 677. That was a direct appeal by the defendant from the order requiring him to pay to the plaintiff a certain sum for the past care, maintenance, education, and support of the children, and a further monthly sum for their future support, education, and maintenance. On such appeal the court was not limited to an examination of the power or jurisdiction of the lower court, but could and did determine whether that power had been rightly or erroneously exercised. It was held that the lower court erred in compelling the defendant to reimburse the plaintiff for expenses incurred in the maintenance, support, and education of the children prior to the time of her application, and the order was reversed with directions to the superior court to make such order as would be consistent with this view. In the opinion reference is made to

Court, and it is pointed out that the Howell Case decides no more than that where no provision is made in the decree for the maintenance of the wife or the children the court has no authority under section 139 to subsequently make an order for such provision. Reference is again made to the Erkenbrach Case, which held that as the section of the revised statutes of New York, similar in its terms to section 138 of the Civil Code, authorized the court to make an order after judgment for the care, custody, and education of the children of the mar riage, "it must be assumed that provision for the expenses reasonably to be incurred for the accomplishment of these objects was within the intention of the Legislature in framing the section."

Shattuck v. Shattuck, 135 Cal. 192, 67 Pac. 45, was an appeal by the defendant from an order made after judgment of divorce against him had become final, requiring him to contribute the sum of $20 per month to the support of the minor child of himself and plaintiff. The decree of divorce had awarded the custody of the child to plaintiff (wife), but contained no provision in reference to the maintenance or support of the child. The opinion is very brief and is based entirely upon the decision in McKay v. McKay, supra. Of that case it is said that "it was there held that if the decree of divorce makes no provision for the maintenance of the children of the marriage, the court is without jurisdiction subsequently to make any order compelling either party to pay to the other for such maintenance; that the provision in section 138 of the Civil Code authorizing the court to vary or modify its decree 'after judgment' is limited to the directions therein for the 'custody, care and education' of the children, and that its power to provide for their 'maintenance' must be exercised at the time the decree of divorce is granted; that if it is not exercised at that time, and the decree is silent upon the subject, it can have no jurisdiction afterwards to make such provision." And upon the authority of McKay v. McKay, so construed, it was held that the superior court was without jurisdiction to render the judgment appealed from, and such judgment was reversed.

An endeavor to show a complete harmony and consistency in these various decisions would be a task of no little difficulty. This much, however, may be said to be the clear and unequivocal result of sections 138 and 139, together with the opinions of this court dealing with those sections. When the superior court has made a decree of divorce, which has, by lapse of time, become final, and has not, in the decree itself reserved jurisdiction to make a supplemental decree, its only power to make further orders affecting the property rights of the parties is that

il Code. Where the divorce is granted for an offense of the husband and the decree requires him to provide for the maintenance of the children or the support of the wife, the court may at any time, under section 139, modify the order making provision for such maintenance or support. This section

(139) does not, however, authorize the making of any order after final judgment where the decree itself contains nothing on the subject of maintenance of children or support of wife. Section 138, permitting the court to give directions for the custody, care, and education of the children, is not so limited. It authorizes action by the court before or after judgment, and where an order is made after judgment, the right to make it exists whether or not the subject of the additional order was touched upon in the decree. Section 138 does not assume to deal with allowances for the support of the wife, and it is clear, therefore, that such allowance cannot be made by order subsequent to the decree of divorce where the decree itself contains no provision regarding the wife's support. The power to give directions for the custody, care, and education of the children of the marriage, vested in the court by section 138, involves the right, not merely to declare who shall have the custody, and what shall be the nature of the care and education of the children, but also, by necessary implication, to require the payment, by one of the parties, of such sums as may be necessary in properly carrying out the objects contemplated by the statute.

There is nothing in any of the cases cited which conflicts with what we have so far said. And it would seem to follow that an order for the payment of money to be applied to any purpose which may fairly be said to be embraced within the phrase "custody, care and education of the children" may be made after a judgment of divorce, whether or not the decree has provided for these objects. But the Shattuck Case holds that an order for the "maintenance" of the children, subsequent to a decree which makes no provision for their maintenance, is not within the power of the court. If this conclusion be sound, it must be because "maintenance" is not included within "care and education." We are unable to see any force in this position. The word "care," as used in the statute, is, if not synonymous with maintenance, a broader term. Kelly v. Jefferis, 3 Del. 286, 50 Atl. 215; Christy v. Pulliam, 17 Ill. 59. Combined with "custody" and "education," it includes every element of provision for the physical, moral, and mental well-being of the child. That the duty of "caring" for a child can be properly discharged without furnishing to it adequate shelter, clothing, and food would hardly be contended. How, then, can it

give directions for the care, custody, and education of the children, has not the power to require money to be paid for their maintenance? If the order in the Shattuck Case had directed the husband to pay $20 per month for the "care and education" of the minor child there would, in view of the rulings in the McKay Cases, have been no ground for contending that the court had exceeded its jurisdiction. In holding the contrary merely because, in seeking to accomplish substantially the same result, the court used the word "support" or "maintenance," we think too much stress was laid on a mere verbal distinction. Furthermore, we can find in McKay v. McKay, which is the sole authority relied on in the Shattuck Case, no warrant for the conclusion that an order for "support" or "maintenance" of minor children may not be made notwithstanding the fact that a preceding decree of divorce is silent on the subject of such support. All that was held in McKay v. McKay was that the court should not, by an order made in such a case, compel the husband to reimburse the wife or a third party for past expenditures incurred for the benefit of the children. The decision, read in connection with McKay v. Superior Court, fully supports the right of the court to make an order for future provision. The order there reviewed required payments for the "support, education and maintenance" of the children. It is not suggested in the opinion in 120 Cal. (52 Pac., 40 L. R. A.) or in that in 125 Cal. (57 Pac.) that the jurisdiction of the court was to be upheld because the order happened to contain the word "education," one of the terms employed in section 138. The reasoning of the decision is that all of the purposes declared in the order were within the scope of this section.

The order here in question directs payments for "support, education and maintenance" of the children of the marriage. The language is precisely the same as that used in McKay v. McKay, and, if there be any valid ground of distinction between that case and Shattuck v. Shattuck, the jurisdiction of the trial court in this case may well be sustained on the authority of the McKay Case. We believe, however, that there is no such ground, and that an order for the benefit of the children is equally within the jurisdiction of the court under section 138, whether it uses the terms "maintenance and support" or the broader and more inclusive expression "custody, care and education."

We have already pointed out that the power to give "directions" for the custody, care, and education of children carries with it the power to require payments of money fo for these purposes. It is contended that, if this be so, the court can order money to

ate specific direction regarding the manner of such custody, care, or education, and the payment is necessary to carry out such direction. But we see no reason for giving this, or any, narrow interpretation to section 138. It is a statute enacted for the protection of the children. Whatever may be the effect of a decree of divorce as between husband and wife, it does not destroy the obligation of either parent toward the children. A law intended to make it possible to enforce this obligation should be liberally construed. When the court orders that money be paid by the father for the custody, care, or education of his children, it is, according to the ordinary sense of the words, and certainly within the meaning of the statute, giving "directions" for their custody, care, or education. An order that money be paid for certain purposes implies a direction to the recipient that it be used for those purposes.

For these reasons, it must be held that the order of 1895, requiring the defendant to make payments for the future "support, education and maintenance" of his children, was within the jurisdiction of the court. It may be added that, with respect to decrees of divorce granted after May 2, 1905, the Legislature has, by an amendment to section 138, taking effect on that date, expressly included "maintenance and support" of children among the enumeration of the objects to be provided for by order made at, before, or after the hearing of an action for divorce. It is probable that the decision in Shattuck v. Shattuck was thought to make this change necessary in order to give effect to the real intention of the Legislature. We are satisfied, however, that the same intention had been declared by the prior enactment.

The order appealed from is affirmed.

We concur: BEATTY, C. J.; SHAW, J.; ANGELLOTTI, J.; LORIGAN, J.; HENSHAW, J.

PATTEN & DAVIES LUMBER CO. v. GIBSON et al. (Civ. 508.)

(Court of Appeal, Second District, California. Sept. 14, 1908.)

1. MECHANICS' LIENS (§ 136*) — NOTICE-DESCRIPTION OF PROPERTY.

If the description in a mechanic's lien notice identifies the property by reference to facts, and clearly points to a piece of property and there is no other that will answer the description, it is sufficient.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. § 214; Dec. Dig. § 136.*] 2. MECHANICS' LIENS (§ 290*)—NOTICE-DESCRIPTION-IDENTITY-QUESTION OF FACT.

Whether the description of property in a mechanic's lien notice is sufficient to enable a

party to identify the property is a question of fact.

[Ed. Note.-For other cases, see Mechanics' Liens, Dec. Dig. § 290.*]

3. MECHANICS' LIENS (§ 290*)-FORECLOSURE -NOTICE-DESCRIPTION-ISSUES.

Where the description in a mechanic's lien notice was alleged to be sufficient for identification in a suit to foreclose which was not denied and there was no finding that the description was insufficient for identification, there was no issue on such question, and it was error to find as a matter of law that the notice was insufficient because of a misstatement of the block of the tract in which the property lay.

[Ed. Note.-For other cases, see Mechanics' Liens, Dec. Dig. § 290.*]

Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge.

Action by the Patten & Davies Lumber Company against Dora May Gibson and others to foreclose a mechanic's lien. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Jones & Weller, for appellant. George L. Keefer and Walter L. Bowers, for respondents.

ALLEN. P. J. This is an action to foreclose a mechanic's lien by a materialman. The contract was admitted to be void for failure to record.

The court finds that the material was furnished and used for the construction of the building, and the only reason the judgment was given for respondents was on account of an error of description in the notice of lien. It appears from the complaint filed, and is not denied by the answer, that the defendant Dora May Gibson was the owner of lot 4, in block C, of the Pellissier tract, in the city of Los Angeles; that on the 29th day of September, 1905, she, as such owner, entered into a contract for the erection and construction of a dwelling house upon the property above described for an agreed price of $2,000; that this contract was subscribed by the parties thereto and filed for record, but no plans and specifications referred to in said contract as being attached thereto were in fact attached to said contract or filed; that the contractor entered upon the performance of his contract and completed the same according to the terms thereof; that during the progress of the work the contractor purchased of plaintiff material of the value of $477.63, which was in fact used in the construction of said house, and the same has not been paid for; that within due time plaintiff filed its notice of lien, which, among other things, contained "a description of the property sought to be charged with its lien sufficient for identification, to wit, the real property and building hereinbefore described; that said property was erroneously described in said claim of lien as lot 4, blk. 6, of the Pellissier tract, but that there is no block 6 in said Pellissier tract, and said defendant

Dora May Gibson does not own any other property in said Pellissier tract," except lot 4 in block C. The court finds that there are buildings other than the building belonging to said Dora May Gibson located on block C of the Pellissier tract, and, further, that the sum of $500 was in the hands of defendant Gibson, due the contractor, at the time of the filing of the complaint in this proceeding, but which subsequent thereto she paid to the contractor.

The only question involved upon the appeal, therefore, is as to the sufficiency of the identification of the property contained in the notice of lien. "If the description (in the notice of lien) identifies the property by reference to the facts, that is, if it points clearly to a piece of property and there is no other one that will answer the description, it is sufficient." Union Lumber Co. v. Simon, 150 Cal. 758, 89 Pac. 1077, 1081. Mr. Phillips, in his work on Liens, lays down a test which is approved by our Supreme Court in Union Lumber Co. v. Simon, supra, namely: "If there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty to the exclusion of others, it will be sufficient." In commenting upon this rule, our Supreme Court in the case last cited says: "Among the identifying facts which are held competent to be considered for determining its sufficiency are references to adjoining properties, a description of the building which has been constructed, the fact that the land upon which it is erected is the only property of the owner in that locality." The question of ability to identify, then, by reason of the description given, is a question of fact. It will be observed that the plaintiff avers as a fact that the description in the notice of lien was sufficient for identification, and it is not denied by the answer. Had an issue been raised with reference to this fact, it would have been competent for plaintiff to introduce evidence in support thereof. There is no finding that the description was insufficient in fact for identification, and the failure to raise an issue obviated the necessity therefor. The only finding of the court is as to the incorrectness of the description, but nothing therein to indicate that such incorrect description failed to properly identify the property. The finding that there is no block 6 in said tract eliminates the block description therefrom, and the description in the notice of lien stands as "lot 4 of the Pellissier tract." There is nothing in the record from which it can be inferred that any other lot in the tract has a similar numerical designation; in fact, nothing to indicate that the Pellissier tract contains any other block than C. The sufficiency of the description for identification being averred and not denied, we think the court erred in holding that as a matter of law the misstatement of the block

was insufficient for the purposes of identification.

Judgment reversed and cause remanded, with directions to enter a judgment and appropriate decree of foreclosure in plaintiff's favor and against defendant Gibson for the amount found due and unpaid on account of the material so furnished by plaintiff and used in the construction of said building.

We concur: SHAW, J.; TAGGART, J.

DUFFY LUMBER CO. v. STANTON et al. (Civ. 480.)

(Court of Appeal, Second District, California. Sept. 14, 1908.)

MECHANICS' LIENS (8 111*)-RIGHT TO LIEN -ABANDONMENT BY CONTRACTOR.

Under Code Civ. Proc. § 1200, providing that, where a contractor abandons the contract, the portion of the contract price applicable to liens shall be fixed by deducting from the value of the work and materials then done and furnished, the payments then made upon the contract, where, at the time the contractor abandoned the contract, the value of the work already done and materials furnished, including that on the ground, was $46 in excess of the amount paid the contractor under the contract, a materialman could only have a lien for that sum, and was not entitled to judgment for 25 per cent. of the estimated value of labor done and materials furnished up to the time of abandonment.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 144, 145; Dec. Dig. § 111.*]

Appeal from Superior Court, Los Angeles County; George H. Hutton, Judge.

Action by the Duffy Lumber Company against Crissie M. Stanton and others. From a judgment in part for plaintiff, it appealed. Affirmed.

Schweitzer & Hutton, for appellant. Bernard Potter, for respondents.

SHAW, J. Plaintiff appeals upon the judgment roll. The court found that defendant entered into a valid contract in writing with one Cropper, whereby the latter for a specified sum agreed to furnish the labor and materials necessary to build and complete for defendant, as owner, a certain house upon the lot designated in said contract, which contract was duly filed in the office of the recorder of the county wherein said lot was situated; that after receiving from defendant the sum of $1,000, paid pursuant to the terms of the contract, the contractor ceased work upon the building and abandoned his contract; that at the time of abandonment the value of the work already performed upon and materials furnished for said building by the contractor, pursuant to the terms of the contract, including materials upon the ground, estimated by the standard of the whole contract price, was the sum of $46 in excess of that already paid to the contractor in accordance with

the terms of the contract. Thereupon the court rendered judgment, decreeing a lien upon the premises for the sum of $46 in favor of plaintiff, who had furnished to the contractor materials of the value of $732.79 for the construction of the building.

Appellant's contention that it is entitled to judgment for 25 per cent. of the estimated value of labor expended upon and materials furnished in the construction of the building up to the time of abandonment is fully answered by the opinion of the Supreme Court in the case of Hoffman-Marks Co. v. Spires et al. (Cal.) 97 Pac. 152, where it is held that in such cases section 1200 of the Code of Civil Procedure furnishes the rule for determining the extent to which the property shall be liable for liens of persons supplying materials. Measured by this rule, the judgment appealed from is correct.

It is therefore affirmed.

We concur: ALLEN, P. J.; TAGGART, J.

TILDEN v. GOLDY MACH. CO. (Civ. 505.) (Court of Appeal, Third District, California. Sept. 10, 1908.)

1. BILLS AND NOTES (8 395*)-NONNEGOTIABLE NOTE-BLANK INDorsement-DEMANDNOTICE.

One who writes his name on the back of a nonnegotiable note to give credit thereto is a guarantor, and is prima facie bound to pay the note on the principal's default, without demand or notice.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 1008; Dec. Dig. § 395.*] 2. CORPORATIONS (§ 414*)-OFFICERS-POWERS -EXECUTIVE COMMITTEE.

Where a corporation's charter and by-laws authorized the appointment of an executive committee by the board of directors with all the powers of the board which might be lawfully delegated in the management of the company's business, and to affix the company's seal to all papers requiring it, a resolution designating certain persons as the executive committee, with authority to exercise all the powers of the board in the current business of the company while the board was not in session, conferred authority on the committee to indorse a note for a loan for the corporation's current business.

[Ed. Note. For other cases, see Corporations, Cent. Dig. 88 1640-1646; Dec. Dig. § 414.*] 3. CORPORATIONS (§ 425*)—AUTHORITY OF OFFICERS-DENIAL-ESTOPPEL.

Where a corporation's executive committee indorsed a note for a loan, and the corporation received the money and knowingly used it in its business, it was estopped to thereafter question the committee's authority to make such indorsement.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1705; Dec. Dig. § 425.*]

Appeal from Superior Court, Santa Clara County; A. L. Rhodes, Judge.

Action by B. B. Tilden against the Goldy Machine Company. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Affirmed.

William A. Bowden, Beasley & Fry, and Elmo Lasleretto, for appellant. Jordan & Rowe, Jordan, Brann & Rowe, and E. M. Rea, for respondent.

CHIPMAN, P. J. Plaintiff recovered judgment, from which and from the order denying its motion for a new trial, defendant appeals.

Defendant was sued as guarantor of the following nonnegotiable promissory note: "15,000.00. San Francisco, Cal. March 24, 1905. On demand, for value received, ] promise to pay B. B. Tilden, the sum of fifteen thousand dollars ($15,000.00) with interest at the rate of three per cent (3%) per annum. William T. Garrett. Witness: H. H. Benedict." Endorsed: "The Goldy Machine Company, per S. N. Goldy, H. F. Emme, Executive Committee." The court found that the defendant is a corporation duly organized and existing under the laws of New Jersey, doing business at Sunnyvale, Santa Clara county, Cal.; that said Garrett executed and delivered to plaintiff said note, and "that at the time and place of its execution, and as a part of the same transaction, and prior to the delivery thereof," defendant, "by its writing on the back of said note, guaranteed the payment of the same and undertook and promised to pay to said plaintiff the principal sum and interest thereon therein mentioned," and "that said defendant received from plaintiff as a consideration for said indorsement of said note the sum of $10,000, gold coin of the United States, then and there loaned by said plaintiff to said defendant"; that demand for payment had been made upon said Garrett and refused, and the same is now due and owing from defendant to plaintiff.

The principal point made by defendant is that the evidence fails to show that defendant executed the indorsement on the note, and hence the findings are not supported. A preliminary point is made, to wit, that, as the note is not negotiable, "the mere indorsement of the name of the company on the back thereof was not in any sense a guaranty that the company would pay the same." The Supreme Court has decided otherwise. First National Bank v. Babcock, 94 Cal. 96, 29 Pac. 415, 28 Am. St. Rep. 94, where it was said: "One who writes his name upon the back of a nonnegotiable promissory note to give it credit is a guarantor, and is liable prima facie for the payment of the note upon default of the principal, without any previous demand or notice." Briefly stated, the note in question was executed and delivered under the following circumstances: Defendant had agreed to purchase certain land at Sunnyvale, Santa Clara county, on which to erect a manufacturing plant, the title to the land depending upon the completion of certain buildings and the