This was a substantial compliance with the requirement of section 1017 of the Penal Code. The plea of not guilty put in issue every material allegation of the information. Pen. Code, § 1019. Appellant complains that made it known, and no doubt the learned trial judge would have exercised a wise discretion, as contemplated by said section 954, providing: "That the court, in the interest of justice and for good cause shown, may, in its discretion, order that the different offenses or counts set forth in the indictment or information be tried separately, or divided into two or more groups and each of said groups tried separately." "It does not appear by whom the defendant was asked the question nor does it appear whether or not the 'plea' mentioned had reference to this case. It does not appear that the defendant was asked by the court or by the clerk or district attorney under its direction whether he pleads guilty or not guilty to the informa-sideration of the case. tion, as provided by section 988 of the Penal Code." [3-5] But the burden is upon appellant to show error, and if the matters referred to should be deemed material, in the absence of a showing to the contrary, the presumption would follow that official duty was performed and that there was no departure from the accustomed proceeding. The record, indeed, does show with sufficient precision that the defendant pleaded not guilty to whatever offense was charged in the information, and, it may be added, that if there was any informality in that respect it was entirely without prejudice. People v. Tomsky, 20 Cal. App. 672, 130 Pac. 184. At the oral argument the point was made for the first time that the defendant should not have been charged with three separate offenses in one information. This course was authorized by section 954 of the Penal Code, providing that We see no occasion for more extended con The judgment and order are affirmed. We concur: ELLISON, Judge pro tem.; HART, J. CHAMBERS v. SECURITY COMMERCIAL RENT RECOVERABLE WITHOUT PRAYER. Under Code Civ. Proc. § 1174, requiring the tenant seeking relief from forfeiture of a lease to pay the rent due with interest thereon, and Civ. Code, § 3287, giving right to interest on unliquidated demands, the landlord is entitled to interest on the rent from the date when several installments became due, though he did not in prayer of his complaint particularly ask for interest. Appeal from Superior Court, San Diego "The indictment or information may charge two or more different offenses connected together in their commission, or different state-County; ments of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts," etc. [6] Herein the defendant was accused in separate counts of three offenses of the same kind against the prosecutrix on the same day. We can see no valid objection to the procedure. As said in Korth v. State, 46 Neb. 640, 65 N. W. 795: "The offenses were all of the same general character, required for their proof the same quality of testimony, the same manner of trial and mode of punishment, and it was proper to try the [offender] upon the several counts at the same time." Action by George J. Chambers against the Security Commercial & Savings Bank to recover possession of real property and for rent due. Judgment for the plaintiff for the amount of rent due but without interest thereon, and plaintiff appeals. Order that lower court modify the judgment by adding interest on rent from the dates due. Crouch & Chambers, of San Diego, and Hunsaker & Britt and Leroy M. Edwards, of Los Angeles, for appellant. Sweet, Stearns & Forward and Sam Ferry Smith, all of San Diego, for respondent. JAMES, J. This action was brought to re In said opinion many authorities are cited cover possession of certain real property, in support of said ruling of the court. the prayer being for restitution of the premSome of the cases hold that where different ises and "for the sum of $18,000, treble the offenses are charged the prosecution, al-rent due," with costs and disbursements, and though permitted to introduce evidence of "all other and proper relief." In the complaint all of them, may be put to an election as to it was alleged that the defendant had failed which a conviction will be demanded. How-to pay rental at the rate of $500 per month, ever, that question is not presented here, as as provided in a lease, on the first of each no such demand was made. We may add month for the year 1915, amounting in all to that, if the defendant had desired to be tried the sum of $6,000. A jury was called to find separately on each count, he should have the amount of rent due, and a verdict was (188 P.) returned fixing that amount as alleged in the complaint at the sum of $6,000; the verdict reciting that sum to be "the total amount of unpaid rent at the rate of five hundred dollars per month for 12 months in the year 1915." Before the entry of judgment, the plaintiff moved for a judgment on the verdict, and asked that the judgment include interest up on the installments of rental from the several dates of default in the payment thereof. The trial court refused to allow interest and entered its judgment only for the sum of $6,000 and the costs which plaintiff had incurred, amounting to $180 additional. There was no judgment for restitution of the premises and no damages provided to be recovered. Plaintiff has appealed from the judgment, specifying as the only objection there to the failure of the court to include interest upon the rental installments from the dates when they matured. We think that interest should have been allowed and that it should have been entered as an incident to the main judgment, regardless of the fact that plaintiff did not, in the prayer of his complaint, particularly ask for such allowance to be made. Under section 1174, Code of Civil Procedure, where forfeiture of a lease is declared, in order to be relieved from such forfeiture, the tenant is required to pay "the amount found due as rent, with interest thereon, and the amount of the damages found by the jury or the court for the unlawful detainer, and the costs." Fur thermore, the question seems to be settled by the provisions of section 3287, Civil Code, which gives the right to interest upon demands which are not unliquidated and which in character, both as to the amount thereof and their due date, are fixed and certain. Cox v. McLaughlin, 76 Cal. 60, 18 Pac. 100, 9 Am. St. Rep. 164; Easterbrook v. Farquharson, 110 Cal. 311, 42 Pac. 811. This case, as it was resolved by the judgment, took the final character of a suit for rent only; hence there appears to be a stronger reason, if any distinction can be drawn, why interest should be allowed, than where the usual judgment for restitution of premises and damages is made. In Mason v. Wolff, 40 Cal. 246, an unlawful detainer suit, the court remarked that, "in a certain sense, the suit is brought upon the lease." The judgment in this case was strictly a judgment upon the lease obligation for the rent due. It is ordered that the superior court modify the judgment by adding thereto a provision that the plaintiff recover interest on the several installments of rental from the dates on which they became due up to the 10th day of June, 1918, at the rate of 7 per cent. per annum. We concur: CONREY, P. J.; SHAW, J. 1. VENDOR AND PURCHASER 187-VENDORS HELD TO HAVE WAIVED PROMPT PAYMENT OF INSTALLMENTS. payments aggregating in amount $2,000 on acWhere vendors accepted eight installment count of principal and $720 on account of interest, after purchasers had defaulted in making prompt payment of such installments, and where after particular installment was due vendors demanded payment by purchasers of the taxes, the vendors by their conduct had waived provision of contract making time of its essence, and had no right to refuse tender of installment made subsequent to date on which it was due, and declare a forfeiture for purchasers' failure to make prompt payment. 2. VENDOR AND PURCHASER 185-VENDORS ACTION TO QUIET TITLE AFTER FORFEITURE CONTROLLED BY EQUITABLE CONSIDERATIONS. Vendors' action to quiet title against purchasers, on the ground that purchasers had forfeited their rights under contract, is addressed to the equitable powers of court, and equity has always looked with marked abhorrence upon forfeitures. 3. VENDOR AND PURCHASER 187-INSIST ENCE ON CURRENT CONDITION NOT ALLOWED BY PARTY REPUDIATING CONTRACT FOR PRIOR BREACH. performance of current condition, such as the A party to a contract cannot insist on the payment of taxes, and thereafter repudiate the contract for a prior breach of which he must have known. 4. VENDOR AND PURCHASER 187-WHERE PROVISION MAKING TIME OF ESSENCE DISREGARDED, FORFEITURE FOR TRIFLING DELAY IN PAYMENT OF INTEREST NOT PERMITTED. Vendor cannot for years disregard a provision making time of the essence of a contract little by little, getting half the value of his land, been lulled to a false sense of security, enforce and then, without notice to purchaser who has a forfeiture for a trifling delay in the payment of interest. Appeal from Superior Court, Riverside County; Hugh H. Craig, Judge. Action by R. H. Webber and others against Phillip D. Herbert and others. Judgment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for defendants, and plaintiffs appeal. Af- 1917. The suit was commenced on October firmed. Geo. S. Hupp, of Los Angeles, for appellants. Nathan Newby, of Los Angeles, for respondents. BRITTAIN, J. The plaintiffs appeal on the judgment roll from a judgment in a suit to quiet title to land in Riverside county. On February 24, 1912, the appellants entered into a contract with the defendants Phillip D. Herbert and Sallie L. Herbert, by which the appellants agreed to sell to the Herberts 80 acres of land for $4,000, payable in 10 annual installments of $400, with interest on deferred payments at the rate of 6 per cent., payable semiannually. The buyers were also bound to pay all taxes and assessments. The contract in terms provided for assignment by either of the two parties. It contained a clause making time of the essence of the contract, and providing for forfeiture of all prior payments upon any default. The buyers assigned to John S. Webb an undivided interest in the land, and this fact was communicated to the sellers in February, 1915, when the sellers promised to notify Webb of any default on the part of the Herberts. An installment of $108 for interest became due in August, 1912, and was paid to the sellers and accepted by them two months later. Between that payment and an installment of $60 for interest which became due on August 24, 1916, there were eight payments accepted by the sellers after their respective due dates. The $60 was sent to the sellers and returned by them on October 7, 1916. At that time, apparently, the only default was the payment of the $60 on August 24. Under the terms of the contract, the buyers theretofore must have paid $2,000 on account of the principal and $720 on account of interest. The $60 was returned in reliance on the term of the -contract making time of its essence. No notice was given to Webb of the default, and, notwithstanding the frequent delays in payments of from one or two days to more than two months, the sellers gave the buyers no warning that in the event of delay in the payment of either of the particular installment of interest or of all future payments the forfeiture of all prior payments would be enforced. The default, even though the provision of the contract making time of its essence had not been waived, must have been at the date when the payment became due. After that date, in reliance on the term of the contract binding the buyers to pay taxes, the sellers demanded of Webb that he pay the taxes for the year 1916-17. This he did. The defendants thereafter offered to pay the $60, and after suit brought tendered the amount of principal and interest which be 20, 1916, a few days after the plaintiffs' demand on Webb for the payment of taxes. [1] Upon findings from which the facts which have been stated appear, the trial court very properly concluded that the plaintiffs by their conduct had waived the provision of the contract making time of its essence, that they are the owners of the legal title to the land subject to the rights of the defendants under the contract, which is in full force, and that the defendants recover their costs, and judgment was entered. [2-4] Such a suit is addressed to the equitable powers of the court. Equity has always looked with marked abhorrence upon forfeitures, and it has been said many times that any unquestioned evidence of sharp practices and over-reaching is sufficient to defeat a complainant in equity who has been guilty of such practices. Neither serious consideration nor citation of authority is necessary to support the conclusion that no party to a contract can insist on the performance of a current condition, such as the payment of taxes, and thereafter repudiate the contract for a prior breach of which he must have known. A court of equity does not permit parties who seek its aid thus to blow hot and cold. Neither may a seller for years disregard a provision making time of the essence of a contract, little by little getting half the value of his land, and then, without notice to the buyer who has been lulled to a false sense of security, enforce a forfeiture for a trifling delay in the payment of interest. Farley v. Vaughn, 11 Cal. 227; Boone v. Templeman, 158 Cal. 290, 110 Pac. 947, 139 Am. St. Rep. 126; Hayt v. Bentel, 164 Cal. 680, 130 Pac. 432; Stevinson v. Joy, 164 Cal. 279, 128 Pac. 751; AmericanHawaiian, etc., Co. v. Butler, 165 Cal. 519, 133 Pac. 280, Ann. Cas. 1916C, 44; Myers v. Williams, 173 Cal. 301, 159 Pac. 982; Newell v. E. B. & A. L. Stone Co., 184 Pac. 659; Bayside Land Co. v. Phillips, 184 Pac. 951. [5] Notwithstanding the well-established rules of law governing such cases as this, by the pendency of this litigation the defendants since October 20, 1916, have been in a position where they could not deal with their property rights, for no one wants to buy even a good lawsuit. The judgment was entered more than a year and a half ago. The appeal is without real foundation and appears to have been taken only for delay. During the time the suit has been pending the respondents have lost the beneficial use of the $2,000 they have already paid. The judgment is affirmed, and it is ordered that the respondents recover of the appellants the sum of $250 as a penalty for the frivolous appeal. (188 P.) SOUTHERN CALIFORNIA OIL SYNDI- the first part; and whereas, the party of the second part has this day advanced to said Tashiro the sum of $550, which has been paid to the party of the first part to apply on the rent for the year ending October 31, 1915; and whereas, the said Tashiro is indebted to the (District Court of Appeal, Second District, Di- party of the first part in the sum of $1,650 on vision 1, California. Feb. 6, 1920.) LANDLORD AND TENANT 248(2) LANDLORD'S CONTRACT WITH TENANT'S CREDITOB, WHO ADVANCED RENT, CONSTRUED. Where landlord, to secure continuation of tenancy, made contract with tenant's creditor, whereby creditor, in consideration of landlord's agreement not to terminate tenancy for default in payment of rent, advanced certain sum toward payment of rent to constitute, together with other advances to certain amount, a lien on the crops, and whereby, after payment thereof, proceeds of crop should be applied to tenant's indebtedness to landlord, creditor, after reimbursement from proceeds of specified amount, was not entitled to recover therefrom advances made necessary for caring for the crop; the landlord being first entitled to indebtedness due it. Appeal from Superior Court, Santa Barbara County; S. E. Crow, Judge. Action by the Southern California Oil Syndicate of London, England, against the Lompoc Produce & Real Estate Company. Judgment for plaintiff, and defendant appeals. Affirmed. C. Kelley Hardenbrook, of Lompoc, and Wm. G. Griffith, of Santa Barbara, for pellant. Richards & Heaney, of Santa Barbara, and J. F. Frick, of Lompoc, for respondent. account of the balance of said rent due or to become due, and is also indebted to the party of the second part in certain sums, and has given to the party of the second part a mortgage of all crops to be grown on the above-mentioned premises during the ensuing year as security for said last-mentioned indebtedness and advances: "Now, therefore, it is hereby agreed that the party of the second part shall have a first lien upon said crop under its mortgage for the sum of $550 this day advanced to be applied on the rent, and also for all further sums which the said party of the second part shall advance to said Tashiro after this date, said further advances not to exceed in all the sum of seven hundred ($700) dollars. "It is further agreed that, after taking out of the proceeds of said crop the amount of said $550 and said advances, the said proceeds shall be applied upon the balance due the party of the first part as rental, and the party of the first part expressly agrees that said tenant shall not be held in default for nonpayment of rent until said crop shall have been harvested. After said rent shall have been paid, the balance of the proceeds of said crop shall be applied in payment of any indebtedness due from said Tashiro to the party of the second part." The crops grown during the year 1915 were ap-harvested and received by the defendant, and there was credited upon the books of the defendant the sum of $2,823.29 as the price thereof. Meanwhile the full amount of $550 and $700, covered by the agreement as advances to be made to the tenant by defendant, had been so advanced to Tashiro. The defendant, however, refused to account to the plaintiff for any part of the crop price, claiming that further advances, and expenditures had been made in order to protect the crops of Tashiro, which advances and expenditures more than equaled the difference between the $550, plus the $700, and the amount Defendcredited as the price of the crop. ant, in its answer, made the following allegations: The JAMES, J. This appeal is taken by the defendant from a judgment entered by the trial court, granting the relief to secure which the action was brought. In November, 1914, plaintiff was the owner of certain land, which had theretofore been and was at the time being held by one Tashiro as tenant. Tashiro was, at the time, indebted to the owner of the land for rental which had accrued under the terms of the lease. tenant had also had business relations with the defendant produce company, which latter had handled crops grown by him. Tashiro, being unable to make payment of the amount due to the plaintiff from his own resources, interested the defendant to the extent that in consideration of the making of the contract hereinafter referred to, he was allowed to continue in the tenancy. The contract referred to was reduced to writing, and signed by the plaintiff and the defendant, plaintiff being the first party and defendant the second party, and contained the following terms: "Whereas, S. Tashiro is the tenant in possession of certain land belonging to the party of "That on said 19th day of May, 1915, said premises had been planted to beans, which were growing thereon, and in order to properly tend and care for said crop of beans it then became and was necessary to expend considerable sums of money for labor, machinery, and supplies. That on said last-mentioned date said Tashiro was without funds or credit to enable him to properly tend and care for said crop, and said Tashiro did then and there refuse and fail to tend, take care of, and protect said crop well, or carefully, or at all, and said crop, by reason thereof, was in danger of becoming damaged and destroyed, so that neither plaintiff nor defendant might obtain any money or benefit from the proceeds thereof. That thereafter defend For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ant gave notice to plaintiff that the sum of $700 | crop brought a sum of money in the market advanced to said Tashiro as aforesaid had been over and above the amounts specifically fixed expended, and that in order to tend, care for, as the maximum which the defendant was and harvest said crop it would be necessary entitled to charge against the sale price. By to expend further sums therefor, which the said the allegations of the answer it appears that Tashiro was unable to provide, and defendant demanded of plaintiff that plaintiff advance such the advances fixed by the contract were not necessary sums or permit defendant to do so, sufficient, for the defendant states therein and first deduct the same from the money re- that "said Tashiro was without funds or ceived from the sale of said crop; but that credit to enable him to properly tend and plaintiff failed and refused to advance any sums care for said crop." Without a further agreewhatever to be used in the protection, caring ment-and it appears there was none-coverfor and harvesting of said crop. That on the ing that matter, we do not think that the 31st day of July, 1915, the defendant, pursuant to the terms of said crop mortgage, and for the defendant was entitled to expend further purpose of protecting the interests of defendant sums, even for the protection of the crops, and plaintiff in said crops, entered upon the and charge that expenditure against the sale said premises and took possession thereof and price obtained, and so deprive the plaintiff of of the crops growing thereon; and thereafter any right to participate in the proceeds. We defendant took all necessary measures for the must assume that it was to defendant's interprotection of said crops, harvested, threshed est to secure a continuation of the tenancy and sacked the same, and delivered them into of Tashiro, and it was by reason of the consideration expressed in the written contract that the plaintiff allowed the lessee to continue to crop the ground. The trial judge allowed offsets against the sale price of the crop for the $700 and $550 advanced by the defendant, and gave judgment in favor of the a warehouse." At the trial the treasurer of defendant company testified that, after the crops were harvested, a credit of $2,823.29 was given to Tashiro on the books of the defendant, and in this connection he further testified: "Q. Was that a credit, Mr. Kahn, or was it plaintiff for the rental due to it. In our opin a sale of the crop of Mr. Tashiro? A. It was a credit. The beans were in our possession at all times. A credit was made upon a sale to us. We bought that produce from Tashiro at that price." On behalf of the defendant the same witness was asked as to whether his company had paid out additional money in raising, cultivating, and harvesting the crops during the summer of 1915, and as to what the condition of the crops was in May, 1915, and as to what measures were taken by the defendant to protect the crops, if any, and whether it became necessary for the defendant to expend money for the protection of the crops during the summer of 1915, and whether the defendant entered into the possession of the premises and took possession of the crops during that summer. All of these questions were objected to, and the objections sustained. ion, the judgment was right. The judgment is affirmed. We concur: CONREY, P. J.; SHAW, J. S. R. FRAZEE CO. v. ARNOLD et al. (Civ. 3192.) (District Court of Appeal, First District, Division 1, California. Feb. 9, 1920.) 1. MECHANICS' LIENS 313 IF OWNER. WOULD ESCAPE LIABILITY, HE MUST REQUIRE GOOD BOND FROM CONTRACTOR. Under Code Civ. Proc. § 1183, providing that if the original contract is filed for record' together with a bond of the contractor with sufficient sureties in an amount not less than 50 per cent. of the contract price, which bond by its terms inures to the benefit of laborers and materialmen, then the court must when equigate amount equal to the amount found due table restrict recovery under liens to an aggrethe contractor, an owner desiring to restrict liability must require a bond which would continue good at least till expiration of the period during which laborers and materialmen can avail themselves of the benefit afforded by the bond. The main contention presented by this appeal involves the rulings of the court in sustaining objections to these questions. The evident theory of the defendant was that, notwithstanding the express and particular terms of the contract, entered into between defendant and the plaintiff, limiting the advances to be made to the two sums of $550 and $700, it was entitled to show other advances made for the purpose of protecting the crops for the mutual benefit of plaintiff and defendant. We think the court did not err in its rulings. The contract was quite plainly made with the intention of assuring the plaintiff that it would receive payment of the rental due it from Tashiro, provided the deemed insufficient. 2. MECHANICS' LIENS HELD INSUFFICIENT. 313-SURETIES ON REQUIRED BY OWNER: accepted contractor's bond, which was signed by the contractor's son the wife's only property being a homestead on and wife, and the son was worth less than $100,. which she filed declaration, after execution of the bond the sureties on the bond must be |