5. PLEADING 106(1) MENT. PLEA AND ABATE- | first reversing the judgment for the defendant in case No. 4201, and then affirming the judgment for the plaintiff in No. 4225. Aft Pleas in abatement are not favored and should be judged with strictness. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 219, 220, 224-227; Dec. Dig. 106(1).] 6. JUDGMENT 949(7)—MERGER AND BARPLEADING SUFFICIENCY. In an action on a note, a plea of a judgment rendered in a former action separately set out as a plea in bar in the answer was insufficient, where it appeared that said judgment had not become final, and determined, in effect, that the plaintiffs' suit was prematurely brought. [Ed. Note. For other cases, see Judgment, Cent. Dig. 1801; Dec. Dig. 949(7).] 7. PLEADING 236(6) — AMENDMENTS - DISCRETION OF COURT. Where an inspection of an offered amended answer shows that as to the merits of the case the defense was practically identical with that stated in the original answer, its refusal was not an abuse of discretion in the trial judge. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 601; Dec. Dig. 236(6).] & STIPULATION erwards the cases were transferred to this court for rehearing. Upon further consideration we find that the District Court correctly decided the cases, and we approve the opinions rendered in that court in case No. 4201 by Mr. Justice Shaw and in case No. 4225 by Mr. Justice James. [1, 2] The opinion of Mr. Justice Shaw is as follows: "This was an action brought to recover upon a promissory note made by the defendant whereby he promised to pay plaintiff the sum of $1,879.55. This note had formed the basis of a prior suit between the same parties for recovery thereon. After defendant had interposed a demurrer to the complaint in this first suit, a stipulation was filed therein whereby plaintiff agreed to accept $1,500 in full payment of the note and interest, provided the same should be paid in the following manner, to wit: $100 on September 20, 1912, and $100 on the 20th day of each month thereafter until the sum of $500 should be paid; $100 on the 20th day of August, 1913, and $100 on the 20th day of each and every month thereafter until the balance of said sum of $1,500 was paid. Defendant made the first five payments in accordance with the stipulation, but neglected and failed to make the payment of $100 stipulated to be paid on August 20th, as, well as the payments thereafter agreed to be made. After such default, and on August 23d, plaintiff instituted this action to recover the full In Bank. Appeals from Superior Court, amount and interest as specified in said promKern County; J. W. Mahon, Judge. TION. 10—VALIDITY-CONSIDERA Where a stipulation was filed in an action, and the parties acted in pursuance of its provisions for several months thereafter, it cannot be said to be without consideration as a stipulation controlling the proceeding in the action. (Ed. Note. For other cases, see Stipulations, Cent. Dig. § 22; Dec. Dig. 10.] Two actions by Henriette Scheeline and others against D. B. Moshier. In the first there was judgment for defendant, and plaintiffs appeal. Reversed and remanded, with directions to dismiss. In the second there was judgment for plaintiffs, and defendant appeals. Affirmed. Kaye & Siemon, of Bakersfield, for appellant. S. Wyman Smith, of Bakersfield (E. J. Emmons, of Bakersfield, of counsel), for respondents. SHAW, J. The appeals presented in the above-entitled cases are from judgments rendered in separate actions founded upon the same obligation, namely, a promissory note for $1,879.55, executed by the defendant to the plaintiffs, dated December 27, 1909, due one day after date, with 6 per cent. interest until paid. Said note has been the subject of three actions between the parties. The first action was begun before the commencement of either of the actions embraced in these appeals. In case No. 4201 judgment was given for the defendant, and the plaintiffs appeal. In case No. 4225 judgment was given in favor of the plaintiffs against the defendant for the balance of the principal and interest due upon said note, and the defendant appeals. The appeal in each case was taken to the District Court of Appeal of the Second District. That court took up the cases separately and made separate decisions thereon at different times, issory note. defendant, and from an order denying a motion "Plaintiff appeals from a judgment in favor of for a new trial. By the terms of the stipulation the defendant covenanted and agreed to pay said $1,500 in the manner and at the times therehe fails for a period of 15 days to make any of in specified, and further agreed 'that in the event the payments * * * specified at the times * * * mentioned, then and in that event the said plaintiff may have judgment for the full amount of the principal and interest of said note, together with costs." The court found, among make said payment on the 20th of August as other things, that notwithstanding the failure to provided in said stipulation, nevertheless the defendant was not in default on account thereof by reason of the fact that the action was instituted within what it designated the 15 days of grace allowed by the terms of said stipulation.' "We do not so interpret the stipulation. The agreement on the part of plaintiff was to accept the $1,500 in full payment provided it was paid in the manner therein specified, and the specifications called for the payment of $100 on August 20th. Defendant agreed so to make the payments. He further agreed that, if days after the time so specified, plaintiff might he failed to make any payment for a period of 15 take judgment against him for the full amount of principal and interest. In other words, had plaintiff waited 15 days after the 20th day of the stipulation, claiming that defendant was esAugust it might have invoked such provision in topped from making any defense to the action, since he had agreed in such event that plaintiff should have judgment for the full amount of said be construed as requiring plaintiff to wait 15 note with costs of suit. The stipulation cannot days after default before exercising its right to sue upon the note; and hence, having elected to sue upon default in the making of the payment called for on August 20th, and before the expiration of the 15 days, defendant was free to invoke any defense open to him in resisting pay For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ment of said note. So construed, the finding of "The alleged pleas in abatement and in bar the court to the effect that no default had been were insufficient. The first plea was in the folmade in the payments provided by said stipula-lowing words: "This defendant alleges: (1) That tion is unsupported by the evidence. there is another action pending between the same parties for the same cause of action, to wit, that certain action No. 8731 in the superior court of the state of California in and for the county of Kern.' There was no allegation expressed from which it could be determined when the action pleaded in abatement had been brought. If that action so pleaded was not pending at the time of the commencement of this suit, then it would not furnish cause for the abatement of the latter. The pleading of this issue should have been as broad as the essential facts necessary to be proved to sustain it. On the sufficiency of such a defense, see Vance v. Olinger, 27 Cal. 358; Martin v. Splivalo, 69 Cal. 611, 11 Pac. 484. Pleas in abatement are not favored and should be judged with strictness. California Savings & Loan Society v. Harris, 111 Cal. 133, 43 Pac. 525. "The plea of a judgment rendered in the former action, as separately set out as a plea in bar in the answer, was insufficient for the reason that it appeared that said judgment had not become final. Furthermore, on the face of it, the judgment was not such an adjudication as would bar the bringing of this action, which was commenced about two months after the entry of that judgment. The first judgment de termined, in effect, that plaintiff's suit was prematurely brought. The complaint in this action fairly showed a cause of action in favor of the plaintiffs accruing at and subsequent to the time alleged in the complaint in the former suit. "The court further found that plaintiff, in December, 1912, agreed that the defendant might have a reasonable time beyond the 15 days of grace within which to make the said payments provided for in the stipulation. This alleged agreement was oral, and no consideration was paid therefor. The general rule is that, where there is no new consideration, and no benefit accruing to the creditor, and no damage to the debtor, the creditor may violate with legal impunity the promise so made to his debtor to accept a lesser sum than that due, however freely and understandingly made. Brooks v. White, 2 Metc. (Mass.) 283, 37 Am. Dec. 95. The contention of the respondent, however, is that this general rule has been modified in this state by section 1524, Civil Code, which provides: Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation.' Accepting respondent's interpretation of this provision, it applies to written agreements only. The only writing was the stipulation filed in the prior suit, whereby plaintiff agreed to accept $1,500 provided it should be paid as therein specified. Such oral agreement, made without consideration, was not binding upon plaintiff, and constitutes no legal excuse for the default made in the payment, called for on August 20th by the terms of the stipulation. Simmons v. Hamilton, 56 Cal. 495." [3-7] The opinion of Mr. Justice James is as follows: "The plea of a tender was not sufficient; the tender alleged was not made in time. "It will not be necessary to analyze the allewhether respondents are correct in stating that gations of the amended answer and determine the contents thereof do not assist in stating a better defense than was stated in the answer filed. An inspection of the offered amended answer shows that as to the merits of the case the defense was practically identical with that stated in the original answer. Under such circumstances it was not, in our opinion, an abuse of discretion for the trial judge to refuse to allow the amended answer to be filed." "This action was brought to recover an alleged balance due on a promissory note executed by defendant. An answer was filed and a motion thereafter made on the part of plaintiffs for judgment on the pleadings because of the alleged failure of the answer to present an issue. This motion was by the court granted. After the motion for judgment on the pleadings had been presented, but before decision of the court was made We are satisfied that the construction givthereon, the defendant presented and asked leave to file an amended answer, which leave was de-en by the District Court of Appeal to the nied. He thereafter appealed from the judgment, stipulation filed in the original action on the and states in his notice of appeal that he also note is correct. It was by its terms made appeals from the order denying his application conditional. The acceptance of $1,500 (less for leave to file the amended answer. "Without giving attention to the objection made by the respondents touching the alleged imperfections in the record which appellant presents here, the main questions sought to be reviewed will be considered. than the sum admitted to be due) was to take place "providing" the payment thereof was made in the "manner" therein specified; not otherwise. If not so made, plaintiff was "The judgment on the pleadings, in our opin- not bound. The manner provided was the ion, was rightly entered. By the answer defend- payment of installments of $100 each at ant admitted the allegations of the complaint as stated times. Upon failure to pay any into the copartnership of the plaintiffs and as to stallment at the stated time, the condition the execution of the promissory note sued upon, failed, and the plaintiff had then the right and then denied that the money had been paid thereon, and alleged that the obligation of the to treat the stipulation as a nullity, so far as note had been extinguished by the execution of a the original obligation was concerned, and new agreement or stipulation made in another hold the defendant to the contract evidenced action. The stipulation was set out in full in the answer, and it appears by inspection thereof that the defendant was in default under the stipulation at the time of the commencement of this action. This court recently considered that stipulation and held that a judgment in favor of defendant in a former suit on the note should be reversed. See Scheeline et al. v. Moshier (Civil No. 1584), reported just above. Applying the conclusions reached in that case to the first de fense set up by the defendant in his answer here, it is apparent that there was no issue raised by the denial as to payment, nor the allegation as to the agreement stipulated having been by the note. "Upon the breach of the terms of an agreement or abandonment by one party thereto, the other party may treat the agreement as a nullity and be remitted to his original cause of action." 8 Cyc. 535. This right is not affected by the subsequent clause providing for judgment in that action when the failure had continued for 15 days. That clause gave authority to proceed in that action and cut off the defend in that event, but it was not exclusive and, [8] As the stipulation was filed in the ac- As the District Court took up the cases separately and decided them at different times, it properly reversed the judgment and order in case No. 4201 and remanded the cause for a new trial. But, as we are now considering them together, we may go further. The judgment in No. 4225, being a just determination of the rights of the parties, should stand as it is. In the other case the judgment and order should not only be reversed, but the case should be dismissed by the lower court. It is clear that the defendant had no meritorious defense to the note. The defenses he proposes to raise grow out of technical matters of procedure in the efforts of the plaintiffs to enforce payment of a just debt. The judgment in No. 4225 gives plaintiffs all they ask for or can obtain in the way of relief. Further litigation in case No. 4201 will be entirely useless and fruitless to either party. If that case is dismissed, the plaintiffs will be chargeable with the costs of that action. In this we perceive no injustice. In case No. 4201 the judgment and order are reversed and the cause remanded to the court below with directions to dismiss the action. fair, and true report, without malice, of a judicial proceeding. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 184-186; Dec. Dig. 80.] 2. LIBEL AND SLANDER 97 - DEFENSES PRIVILEGE-How RAISED. Plea of privilege in action for libel is defensive matter and cannot be raised on demurrer unless the complaint affirmatively shows on true report, without malice, of a judicial proits face that the alleged libel was a fair and ceeding. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 234-236; Dec. Dig. 97.] Appeal from Superior Court of City and County of San Francisco; Geo. A. Sturtevant, Judge. Action by Robert J. Riley against the Evening Post Publishing Company. Judgment for defendant on order sustaining demurrer and plaintiff's refusal to plead further, and plaintiff appeals. Reversed, with instruc tions. Milton A. Nathan, of San Francisco, for appellant. C. H. Wilson, of San Francisco, for respondent. PER CURIAM. This is an appeal from a judgment in favor of the defendant in an action for libel rendered upon the order of the court sustaining a demurrer to the plaintiff's second amended complaint, the plaintiff having declined to further amend his pleading. The plaintiff's said complaint alleges that the defendant, a corporation, is the owner and publisher of a certain newspaper of general circulation known as "The San Francisco Post"; that on or about the 28th day of April, 1913, one Patrick Farrelly commenced In case No. 4225 the judgment is affirmed. an action for divorce against his wife Flora Farrelly in the superior court of the city and We concur: MELVIN, J.; SLOSS, J.; county of San Francisco, and on June 19, HENSHAW, J. 1913, filed an amended complaint therein, to which on August 19, 1913, his said wife filed We concur in the judgment: ANGELLOT- an answer and cross-complaint; that on AuTI, C. J.; LAWLOR, J. (Cal. App. 294) gust 20, 1913, the defendant caused to be published in said newspaper an article having reference to said divorce action, which article is set forth in full in said complaint, and RILEY et al. v. EVENING POST PUB. CO. wherein under sensational headlines it is stat (Civ. 1833.) (District Court of Appeal, First District, California. April 27, 1916. Rehearing Denied May 27, 1916; Denied by Supreme Court June 26, 1916.) ed that Patrick Farrelly in his complaint in said divorce action accuses his wife of having two "affinities," of whom this plaintiff is named as one, who visited his home in his absence. It is also stated that the wife 1. LIBEL AND SLANDER 80 PLEADING charges in her pleadings that her relations SUFFICIENCY. Complaint, alleging defendant owned and with Riley (the plaintiff herein) were not published a paper of general circulation and without the knowledge of her husband. The published therein an article referring to a di- complaint in this action further alleges that vorce suit in which plaintiff was named as co- said publication was false, libelous, malicious, respondent, setting forth the article, which boldly referred to plaintiff, through a copy of and defamatory, and also avers that the the petition, as an "affinity," and that such term "affinity," as used in said article and apword had a definite local meaning as one hav-plied to the plaintiff therein, has a definite, ing illicit sexual relation, that defendant so provincial, and local meaning, viz., that it used the word and so intended, sufficiently states a cause of action for libel, since it does designates a person who bears an illicit sexutot show on its face that the article was a full. al relation to another person of the opposite For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 158 P.-15 sex; and that said defendant in said publica- [ tion used said word in that sense, and intended thereby to publish and assert that said Patrick Farrelly accused the said plaintiff of having illicit sexual relations with his wife; and that the same was in fact so understood by the readers of said article. [1, 2] It seems perfectly plain to this court that a complaint couched in the foregoing terms states a cause of action for libel; and that it does not appear upon the face thereof that the article published by the defendant in said newspaper was "a fair and true report, without malice, of a judicial proceeding," and was for that reason a privileged publication. On the contrary, it clearly appears that said publication, in so far as it states that Patrick Farrelly in said divorce action accuses this plaintiff of having sexual relations with Farrelly's wife, is false, libelous, malicious, and defamatory. In actions for libel the plea of privilege is defensive matter, which cannot be raised on demurrer unless the complaint affirmatively shows that the report complained of as libelous is a fair and true report, without malice, of a judicial proceeding; and, as we have seen, the exact opposite appears upon the face of this complaint. It follows that the judgment must be reversed, with instructions to the trial court to overrule the defendant's demurrer to the sec ond amended complaint, and it is so ordered. (30 Cal. App. 306) MORROW et al. v. WELLS. (Civ. 1708.) (District Court of Appeal, First District, California. April 27, 1916. Rehearing Denied by Supreme Court June 26, 1916.) 1. APPEAL AND ERROR 1010(1)-SCOPE or REVIEW-FINDINGS OF FACT. Where the trial court's findings as to facts in controversy are supported by the evidence, they cannot be disturbed on appeal. L. L. Cory, of Fresno, and Shepard & Shepard, of Selma, for appellant. Everts & Ewing and Gallaher & Aten, all of Fresno, for respondents. LENNON, P. J. This action was brought to recover the sum of $1,080, claimed to have been wrongfully withheld by defendant. Plaintiffs recovered judgment for the sum of $859.69, and this appeal is from such judg ment. certain lands situated in the county of FresThe controversy arose out of the sale of no, the facts being substantially as follows: On the 4th day of March, 1912, the defendant George E. Wells entered into a written contract to sell to plaintiffs the land in question. At that time one C. B. Darneal, a son-in-law of the vendor Wells, was in possession of the premises under a certain lease, by the terms of which Darneal had agreed to properly farm, cultivate, care for, and market the crop of fruit growing thereon for the year 1912, and was to receive for his services onehalf of the proceeds thereof, and the land was sold subject to such lease. Darneal harvested the fruit and some hay, sold the same, and accounted to Wells, but withheld from the plaintiffs their share, alleged to be the of the contract of sale, the vendees of the sum sued for. By the terms and conditions land, plaintiffs herein, agreed to pay the sum of $6,750 for the land with interest on deferred payments at the rate of 72 per cent. per annum. In substance, the agreement provided for the payment of $200 cash in advance, balance of interest payable September 1, 1912. All interest thereafter was payable in advance on the 1st day of September of each year, $250 on the principal September 1, 1913, and a like amount each year thereafter until a certain amount was paid, when a new arrangement or agreement was to be made. As part of the terms of the contract and as further security for the payments stipulated for, it was provided that plaintiffs should execute to the defendant Wells a mortgage on the crops raised on the premises; said mortgage to cover oneWhere a crop mortgage was given to secure half of the crops for the year 1912, and to the purchase price of land under a contract of extend to all of the crops raised during cersale providing for payments of certain sums on tain succeeding years. In conformity with dates specified, the mortgagee could not tain the entire proceeds of the crop and apply this clause of the contract, a crop mortgage them on the price, but was entitled only to the was executed by plaintiff in favor of deamount of the payment then due; the instru- fendant Wells. At or about the time specments being concurrent and requiring construc-ified for the first payment under the contract, tion as one contract. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. 1010(1).] 2. CHATTEL MORTGAGES 165 PRICE-CONSTRUCTION. PURCHASE re [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 297-300; Dec. Dig. 165.] on September 1, 1912, defendant Wells became dissatisfied with the contract, and the record shows that he endeavored to avoid carrying out its terms; in fact, it is fairly Appeal from Superior Court, Fresno Coun- manifest that he concluded to treat the conty; H. Z. Austin, Judge. Action by J. M. Morrow and another against George E. Wells. Judgment for plaintiffs, and defendant appeals. Affirmed. Rehearing denied; Shaw, J., dissenting. tract as at an end so far as he was concerned, and from that time on he managed the property as his own, confusing the crops with those raised on his home place. As further evidence of this fact, he endeavored to evade 264-COMMUNITY a tender due from the purchasers, who there- | 2. HUSBAND AND WIFE PROPERTY-EVIDENCE. upon deposited the same to his credit in the Evidence held to show that certain deposits Union National Bank of Fresno. In addiwhich the husband sought to recover of the tion to this, it is in evidence that Wells ex-wife's administratrix were not community proppressly declared that he considered the con- erty, but the separate property of the wife and tract at an end. her family. Defendant seeks to escape liability for the performance of the contract on the following grounds: (1) It is their claim that it was the duty of the plaintiffs to care for and protect the growing crops, and that, they having neglected so to do, the defendant was com- Action by Martin L. Gates against Gerpelled to install a pumping plant and to fur- trude Julia Cunningham, administratrix. nish trays and sweat-boxes, and market the From a judgment for defendant and order products at his own expense; (2) because of denying new trial, plaintiff appeals. Afthe fact that the mortgage was given to cov-firmed. Appeal from Superior Court, City and County of San Francisco; Jas. M. Troutt, Judge. er the whole balance of the purchase price Stafford & Stafford and W. P. Caubu, all due under the contract of sale, that the ven- of San Francisco, for appellant. Martin Uldor was entitled to retain all the sums re- dall, of San Francisco, for respondent. ceived from the sale of the fruit, and apply them on the contract. LENNON, P. J. This is an appeal from a [1] With reference to the first contention, it is sufficient to say that the trial court found upon conflicting evidence that no boxes or trays were ever furnished by defendant, and that no pumping plant was ever installed or was ever needed to protect the crops. This finding is amply supported by the evidence, and under the familiar rule cannot be disturbed on appeal. Martin L. Gates and Julia Gates were hus[2] Equally untenable is the second conten-band and wife. During their married life tion. In the very terms of the contract of they accumulated by their joint efforts the sale the amount to become due thereunder sum of $1,900, which was community propwas definitely provided for. The mere fact erty. This money was deposited by the wife that the crop mortgage was given as security in the Savings Union Bank & Trust Company for the full amount due under the contract in the city of San Francisco, with the knowldoes not thereby qualify the express terms edge, consent and approval of her husband. of the contract in this respect. These two A short time prior to her death, viz., on instruments were made at the same time and June 21, 1914, the wife, without the knowldepended upon each other, and were in effect edge or consent of her husband, gave to one contract. From a reading of the two in- George Rapp, the deceased, an order upon struments it is clearly manifest that the in- the Savings Union Bank & Trust Company tention of the parties was to have the profits for the $1,900 which she had on deposit of the land insure the payments due under there. Rapp presented the order to the bank. the contract according to the terms provided It was honored, and the money withdrawu for therein, and these payments were specific and deposited in the name of and to the credamounts at specified times. it of Rapp in the Humboldt Savings Bank. Thereafter, and until the time of his death, July 11, 1914, Rapp claimed to hold and own such sum as his individual property. The defendant's answer denied all of the material allegations of the plaintiff's complaint, save and except the allegation of the presentation and rejection of the claim against the estate of the deceased. judgment entered in favor of the defendant and from an order denying the plaintiff a new trial, in an action wherein the plaintiff sought to recover the sum of $1,900 upon a rejected claim against the estate of George w. Rapp, deceased. The plaintiff's cause of action was rested primarily upon allegations of fact substantially as follows: No other questions are presented. We concur: GAN, J. (30 Cal. App. 319) RICHARDS, J.; KERRI GATES v. CUNNINGHAM. (Civ. 1719.) (District Court of Appeal, First District, California. April 27, 1916. Rehearing Denied May 27, 1916; Denied by Supreme Court June 26, 1916.) Upon the issues thus framed the cause was tried by the court without a jury, and its findings of fact were, in substance and effect, that Martin L Gates and his wife, Julia, 1. HUSBAND AND WIFE ~262(1)—COMMUNI-Gates, did not while living together as husTY PROPERTY-PRESUMPTIONS. band and wife accumulate the sum of $1,900 Initial and subsequent deposits in bank, or any sum of money whatever of which she, credited to various accounts of the wife, create the rebuttable presumption that they are com- the wife, had control, and which she depositmunity property. ed in the Savings Union Bank & Trust Com[Ed. Note.-For other cases, see Husband and pany; that Julia Gates did not on the 21st Wife, Cent. Dig. § 913; Dec. Dig. 262(1).]| day of June, 1914, give to George Rapp, the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |