verified under oath by the president and secretary, and posted in some conspicuous place in the office of the company.

* * *""

"Sec. 3. In case of the failure of the directors to have the reports and accounts current made and posted as in the first section of this act provided, they shall be liable, either severally or jointly, to an action by any stockholder, in any court of competent jurisdiction, complaining thereof, and, on proof of such refusal or failure, such complaining stockholder shall recover judgment for one thousand dollars liquidated damages, with costs of suit."

It will be perceived that this act is, in its nature, penal, and does not specifically declare that for each failure to comply with its requirements a penalty may be recovered. Nor does it declare that each refusal or neglect of that kind shall render the directors liable for a penalty. It would therefore seem that, under its provisions, the stockholder or stockholders might, at their election, either proceed against the directors for a single delinquency, or might forbear to do so until more than one dereliction of duty on the part of their trustees (so to speak) had occurred; but in neither event could more than one penalty be recovered.

But, while this is the reasonable and unstrained view to be taken of the law relative to the extent of the liability of the directors, it does not follow that the amended complaint did not contain a sufficient statement of facts to constitute a cause of action, or that the demurrer should have been sustained on the alleged ground that several causes of action were in that pleading improperly joined. The joining of several matters of fact together which show as many failures to perform a duty enjoined by law, and claiming the legal right (which is but a conclusion of law) to recover a penalty for each, when the law itself only allows the recovery of one penalty for one and all of such violations, is not a joining of several distinct causes of action.

The plaintiff is entitled to recover if he has alleged, and can prove, the defendants to have been guilty of failure, on the first Monday of any one month, "to have the reports and accounts current made and posted as in the first section of this act provided," or if they have so failed on the first Monday of any other or all other months; and hence the statement of seven violations of the statute of the same kind, although he may join them together in his complaint, and claim to recover a penalty for each, is, under the statute, a statement of but one cause of action. In other words, as the statute in terms provides for but a single penalty of $1,000, no other or greater sum can be recovered, although violations of the statute may have been frequent. But it does not follow from this that the plaintiff may not join together in one count several of such alleged violations, and prove any one of them in his power, as they constitute separately or together but one cause of action.

We are therefore of opinion that the judgment should be reversed, and the cause remanded; the defendants to be allowed, if so advised, to answer the amended complaint.

We concur: BELCHER, C. C.; SEARLS, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment is reversed, and cause remanded, with leave to defendants to answer the amended complaint.

(71 Cal. 537)

HANCOCK . HUBBELL. (Supreme Court of California.

1. DAMAGES-BREACH OF CONTRACT-PLEADING

(No. 11,501.) January 14, 1887.) EVIDENCE.

In an action for a breach of contract by defendant, to give plaintiff a certain time in which to take up tax certificates, by reason of which breach a third person has obtained tax deeds of the land, and caused the same to be recorded, and has brought an action against plaintiff to quiet the title to said land, in the absence of an

allegation in the complaint that plaintiff has lost possession of it, it is incompetent to introduce proof tending to show the value of the rents and profits of such land, as a foundation for a judgment against the defendant for the loss of its possession. 2. SAME-PROXIMATE CAUSE-SPECIAL Damage.

The action to quiet title was not a proximate or necessary result of the breach, and, no special damages being pleaded, evidence of expenses and attorney's fees in that cause is inadmissible.

3. TRUSTS EVIDENCE TO ESTABLISH.

A trust to purchase lands at tax-sale, and restore them to their owner, is not established by an agreement, just before the time of redemption expired, to extend the period of redemption a month beyond the statutory limit.

4. PLEADING AMENDMENT DURING TRIAL NECESSITATING CONTINUANCE.

After a trial has been in progress several days, and the plaintiff had been fully advised early in the proceedings that the defendant considered the complaint defective, it is not an abuse of the court's discretion to refuse the plaintiff an amendment which, if granted, would have necessitated a continuance.

5. NONSUIT-PLAINTIFF ENTITLED TO NOMINAL DAMAGES.

Where, in an action to recover damages for breach of contract, no damages are proven, but a breach is established, the plaintiff is entitled to a judgment for nominal damages and costs, and it is error to order a nonsuit.

In bank. Appeal from superior court, Los Angeles county.

Plaintiff alleges that, February 21, 1880, he was the owner and in the possession of certain real estate; that, about the time it was to be sold for delinquent taxes, plaintiff agreed to let it be sold therefor, and that defendant should buy it in, and hold the title in trust for plaintiff; that it was accordingly sold February 24, 1880, to defendant; that on February 21, 1880, defendant agreed to give plaintiff till March 24, 1880, to redeem; that March 23, 1880, plaintiff delivered the amount due, but defendant refused to accept the tender, and had in fact assigned the certificate to John Anderson, in violation of his contract; that Anderson obtained the tax deeds, which were recorded; that the title of record still stands in Anderson, who has brought suit to quiet title; and that the value of the land is $50,000; and prays for damages in the sum of $50,000. The instrument on which the trust was supported is as follows:

"LOS ANGELES, February 21, 1880.

"It is understood and agreed that Henry Hancock may redeem the land assessed to Sylvester Bryant, [estate of,] and that assessed to John Hancock, for the fiscal year ending June 30, 1880, in San Bernardino county, purchased at the last tax sale, on or before March 24, 1880, by paying the amount paid out, and 20 per cent. thereon; but the said time shall not extend beyond said date, to-wit, March 24, 1880, time being the essence of this agreement.

"S. C. HUBBELL."

On the third day of the trial plaintiff asked leave to amend his complaint so as to set forth special damages, money paid out for counsel fees, and costs in suit to quiet title. The defendants objected, on the ground that, if they are allowed to amend, it necessitates a continuance. Motion denied.

L. Quint and Barclay & Wilson, for appellant.. Chapman & Hendrick, for respondent.

FOOTE, C. This is an appeal from a judgment of nonsuit and an order refusing a new trial. We have carefully examined the record and all the authorities cited by counsel. The complaint alleged that the plaintiff was in possession of certain lands involved in this controversy, but did not aver that he had ever lost possession thereof, therefore it was not competent to introduce proof tending to show the value of the rents and profits of such land, as a foundation for a judgment against the defendant for the loss of its possession.

No special damages were pleaded; hence the evidence offered of expenses, attorney fees, etc., which were not the proximate result of the violation of

the contract, or which, in the ordinary course of things, would not have been likely to result therefrom, was properly excluded.

The trust alleged was not proved by competent and legal evidence, as the written agreement, which was the only legal proof of its existence offered, did not tend to establish it.

The court did not abuse the discretion vested in it by law in refusing the plaintiff's application to amend his complaint. The trial had been in progress for several days, the plaintiff was fully advised early in the course of the proceedings that the defendant considered the complaint defective, and the latter made that fact evident by repeated objections to the introduction of evidence tending to prove damages claimed to have been suffered by the former. It is plain that a continuance would have been the result had leave been granted to amend, which result would not have been caused by any fault of the defendant. Graham v. Stewart, 9 Pac. Rep. 555.

But the plaintiff claims that it was his right to have the jury pass upon the question whether or not, upon the evidence before them of a breach of contract, he was entitled to a verdict for nominal damages. We think the evidence did show a violation by the defendant of his contract with the plaintiff to permit the latter to redeem certain lands sold at tax sale; the former having possession of the certificates of such sale at the time the contract was entered into, such redemption to take place within a certain specified time. Although the record does not show that any proof was offered, which was admissible under the pleadings, that any actual damages were suffered by the plaintiff from the breach of the contract on the part of the defendant, yet, as the contract was proved to have been violated, the former was entitled to have the jury determine, upon a proper charge of the law by the court, whether or not they would render a verdict for nominal damages in his favor. And, if they had returned a verdict for the plaintiff for nominal damages, a judgment therefor would have been proper. Browner v. Davis, 15 Cal. 9-11; Sedg. Dam. (7th Ed.) 71, 72, note B, and cases cited. The judgment of nonsuit was therefore wrong, and the court should have granted a new trial upon the plaintiff's motion.

The judgment carried with it the right of the defendant by legal process to enforce payment from the plaintiff, or satisfaction by sale of his property, of the sum of $232.90, recovered by the former against the latter for costs. To that extent the plaintiff's rights were prejudiced; but it is apparent from the record that the plaintiff, upon a new trial, would not be entitled to anything more than a judgment for nominal damages, which, while it would relieve him of the payment of costs to the defendant, would not give him the right to enforce the payment of his own costs from the latter.

For these reasons we are of the opinion that the order denying a new trial should be reversed, unless the defendant will remit the sum of $232.90, which he has recovered for his costs, etc., against the plaintiff; but, upon that being done by the defendant, the order should be affirmed.

The appeal from the judgment, not having been taken within the statutory period of time, cannot be considered.

We concur: SEARLS, C.; BELCHER, C. C.

BY THE COURT. For the reasons given in the foregoing opinion, the appeal from the judgment is dismissed. Order reversed, unless defendant, within 30 days, remits the sum of $232.90, which being done, the order should stand affirmed. Said remittance to be filed with the clerk of this court.

(4 N. M. [Gild.] 8)

SAN MARCIAL LAND & IMP. Co. and others v. STAPLETON.

(Supreme Court of New Mexico. January 6, 1887.)

APPEAL-EQUITY-DECREE NOT WARRANTED BY BILL-REMAND FOR AMENDMENT. Where complainants have filed a bill, relying for relief upon certain grounds alleged therein, and have obtained a decree in their favor upon such grounds, which cannot be sustained upon the grounds on which it was granted, they cannot have such decree sustained on appeal on other grounds than those relied upon in their bill, although the same may show a cause for relief, but the cause will be remanded, with leave to amend; otherwise to dismiss.

Appeal from district court, Socorro county.

Bill to enjoin sale under a mortgage. Judgment for complainants. Defendant appeals.

Fiske & Warren and R. T. Posey, for appellant, Stapleton. Bell & Field, for appellees, San Marcial Land & Imp. Co. and others.

HENDERSON, J. Complainants filed their bill in the district court for Socorro county on the ninth day of November, 1383, in which they make the following allegations, in substance: That on the twenty-fifth day of July, 1882, appellant, Stapleton, by deed of that date, conveyed the lands described in the bill to appellee Zimmerman, taking a note for $2,000 for the deferred payment of the purchase money on the sale,-the execution by Zimmerman of a mortgage of that date as security therefor; that Zimmerman afterwards sold and conveyed the same lands to appellee corporation by deed of general warranty, and that Zimmerman was the holder of a large majority of the capital stock of the corporation; that appellant, by his deed to Zimmerman, covenanted and guarantied that he, the appellant, had not himself committed, or permitted others to commit, any act in anywise impairing or affecting the title to said land, or any portion thereof; that appellant is insolvent; that he had executed a certain mortgage of the same land, dated October 24, 1866, to one Charles P Clever, to secure the payment of certain notes therein described, aggregating the sum of $4,950, and which mortgage was recorded in the recorder's office of Socorro county, and remains unsatisfied and a cloud upon appellees' title, and a breach of the above alleged warranty of appellant; that appellant was advertising and threatening to sell the mortgaged lands on November 16, 1883, under the power of sale contained in the mortgage to him from Zimmerman, and the prayer of the bill is for injunction restraining the sale, and for general relief.

On January 2, 1884, appellant filed his plea and answer. The plea set up the territorial statute of limitations of February 1, 1858, against the Clever mortgage. The answer admits the conveyance by appellant to Zimmerman, and the note and mortgage from Zimmerman to him, but avers that the deed from him to Zimmerman was a quitclaim conveying only the title he then had, and denied that the alleged guaranty enlarged the title conveyed. He also denied that the alleged breach of the guaranty impaired or affected the title conveyed by the deed, or that he was insolvent. It is admitted that the appellant had advertised and was about to offer the lands for sale under the power contained in the mortgage, and prayed for the dissolution of the temporary injunction, and the dismissal of the bill.

The cause was submitted on the pleadings, and thereupon the court rendered a final decree making the injunction perpetual restraining appellant from selling the lands under the Zimmerman mortgage. From this decree an appeal was taken to this court.

The chancellor, in deciding the cause, reduced his findings to writing, which have been copied into the transcript, and constitute a portion of the record before us. From this opinion it seems that the sole ground for the decree per

petually restraining a sale under the Zimmerman mortgage was the alleged breach of the covenant of warranty or guaranty against incumbrance contained in the deed from appellant to Zimmerman on account of the Clever mortgage. Counsel for appellees, in a commendable spirit of fairness, in open court, concedes that the court below was in error in enjoining the sale for the reasons stated in the opinion, but insists that the decree is nevertheless correct, although a wrong reason was given in making it. He now urges upon our consideration that, although the bill does not, in specific terms, allege the power in the mortgage to have been so loosely and indefinitely framed that it could not have heen enforced, still that it is our duty, in the absence of any allegation whatever of oppression, fraud, injustice, or injury to complainants in any way so far as their equities are concerned arising out of the power conferred by Zimmerman, to uphold the decree, if, in our judgment, such power was incapable of enforcement in the manner threatened by appellant.

Without further inquiry into the terms employed in the mortgage to create the power, we think it sufficient to say that the pleadings, taken as a whole, and the judgment of the court below, do not furnish the slightest ground for supposing that the complainants sought the injunction and relief prayed for and granted on account of the insufficiency of the power to warrant a sale by the trustee. It is not alleged that the mortgagee is about to proceed in an improper or oppressive manner to execute the power, or that the sale threatened would not be authorized by the terms employed in the mortgage. The oppression and injury alleged as impending grew out of the facts stated as grounds of equitable interposition on account of the breach of the covenant contained in the deed against incumbrance.

"The court will enjoin a sale only when the petitioner's rights are clear or free from reasonable doubt. He must also show a good reason for the interference of the court. He must show that the mortgagee is about to proceed in an improper or oppressive manner, and not that he might adopt a different remedy. In general, a stronger case must be presented to the court to obtain an injunction against a proposed sale under a power than to obtain a decree setting it aside, after it is made." 1 Jones, Mortg. § 1805.

If it be true, as stated by the learned author of the text above quoted, that it is necessary, in order to enjoin a sale under a power, to “show a good reason for the interference of the court," complainants have wholly failed, as the only reason shown by the bill is confessed by counsel for appellees to be insufficient. To affirm the decree below on the ground contended for here would be in violation of fundamental principles in the law of equity pleadings.

"An original bill praying the decree of the court touching rights claimed by the person exhibiting the bill, in opposition to the rights claimed by the person against whom the bill is exhibited, must show the rights of the plaintiff or person exhibiting the bill, by whom and in what manner he is injured, or in what he wants the assistance of the court." Mitf. Ch. Pl. 65.

Although in bills in equity the same precision of statement that is required in the pleadings at law is not attainable, yet it is absolutely necessary that such a convenient degree of certainty should be adopted as may serve to give the defendant full information of the case which he is called upon to answer. 1 Daniell, Pl. & Pr. 421.

"The stating part of a bill ought fully to unfold and expound the plaintiff's case." Story, Pl. § 33. See, also, section 253.

Had the pleader, in drawing the bill, relied in any respect upon the insufficiency of the power to warrant the mortgagee in carrying it into effect by a sale as threatened, and had defectively or insufficiently set out the particular reasons or grounds, and the defendant had answered or filed pleas, it would have been too late to make the objection here; but in the record before us the power was not assailed, and constituted no part of the equitable grounds alleged for relief.