form of the words, the delivery is absolute, and the deed takes effect immediately". To the same effect is Devlin on Deeds, section 314, and Mowry v. Heney, 86 Cal. 471.

[3] Moreover, to permit the introduction of oral evidence tending to establish an agreement contrary to the plain import of the written assignment, which on its face is absolute, would be in direct violation of that cardinal rule that the terms of a written instrument cannot be varied or altered by evidence resting in parol.

Respondent cites a number of authorities in support of the proposition that the delivery of an instrument is a question of fact to be determined by oral evidence. This is necessarily true, but the question of delivery is not involved here. The answer admits, and the court finds, that the certificate was assigned and the instru ment constituting the assignment was duly delivered by defendant to plaintiff. [4] This being true, the terms and conditions of the assignment and transfer must be determined from the language of the instrument; nor can its operation and effect be abridged or limited by attaching thereto conditions and qualifications resting in parol. Finding III is based solely upon oral evidence, the admission of which constituted prejudicial error.

Defendant alleges in his answer and cross-compl ́int that plaintiff not only failed and neglected to perform his agreement to pay said note, but informed defendant that he was willing to, and did then and there at such time, agree with said defendant herein to redeliver and re-assign the said certificate to said defendant and cross-complainant herein; that pursuant to said agreement defendant did, on or about November 25, 1902, pay said note, and at the time of said payment plaintiff stated that he had no claim on said certificate or the property whatsoever. There was evidence tending to prove the facts contained in this allegation and the court found the same to be true. It is suggested that such finding establishes a rescission by mutual consent, as well as by reason of a failure of consideration on account of plaintiff's neglect to pay said note. (Sec. 1689, Civ. Code.) [5] Rescission presupposes the existence of an executory contract, while here the contract was fully executed so far as the transfer of the certificate of purchase was concerned. The effect of its assignment, if made pursuant to the statute, was to convey absolutely to plaintiff all interest which defendant had under and by virtue thereof to the land described therein. The transfer and assignment, as averred in the answer, "was made absolutely upon the agreement of the said plaintiff to pay the said note and mortgage as aforesaid and for no other reason or consideration whatever."

[6] Disregarding, as we must for reasons herein before stated, the conditional delivery as alleged and found by the court, it seems clear that defendant transferred the certificate to plaintiff in reliance upon the latter's promise at a future time to pay the Hannah note. Under such circumstances, the breach of plaintiff's covenant would not warrant a rescission and revesting of the property in defendant under section 1689, Civil Code, but a cause of action for damages only.

Had plaintiff given his promissory note payable at a future date for the purchase price of the certificate and made default in its

payment, it could not be seriously contended that defendant would have the right to rescind the contract and have the certificate reassigned him. (Lawrence v. Gayetty, 78 Cal. 126; Hartman v. Reed, 50 Cal. 485.)

It is also suggested that the facts found show a parol agreement made by the parties to the effect that plaintiff would reassign and transfer the certificate to defendant, provided the latter would pay the Hannah note, thereby releasing plaintiff from his covenant to pay same, and that pursuant to such agreement defendant made said payment. Assuming this to be true, we are unable to perceive that such fact can avail defendant in securing an affirmation of the judgment. At most, the circumstances constitute a distinct transaction, wholly disconnected from the first, which could be enforced, if at all, by an action for specific performance. But defendant omits to allege the facts, if they exist, which are requisite to a sufficient complaint for specific performance. (Stiles v. Hermosa Beach Land etc. Co., 8 Cal. App. 352.) Moreover, as the property evidenced by the certificate as between the parties is an interest in real estate (Sec. 3514, Pol. Code; McCabe v. Goodwin, 106 Cal. 486), a parol agreement for its sale and transfer is obnoxious to the provisions of section 1973, Code of Civil Procedure. (Hill v. Den, 121 Cal. 42.) Nor was there such part performance as to bring the transaction within the rule laid down in section 1741, Civil Code, for the reason that, while it is found that defendant paid the purchase price, it is not found, though it is an issue raised by the pleadings, that he entered into possession of the land or made improvements thereon. Judgment and order reversed.

We concur:

ALLEN, P. J.

TAGGART, J.

SHAW, J.

Crim. No. 155. Second Appellate District. December 20, 1909. In the Matter of the Application of JAMES E. BOND for a Writ of Habeas Corpus.

[1] MUNICIPAL ORDINANCE-PROHIBITION OF SALE OR GIFT OF INTOXICATING LIQUORS-PLACE OF BUSINESS-WHEN IMMATERIAL.—A prohibitory liquor ordinance, which contains one clause applying to the keeping of a place of business for the sale or giving away of intoxicating liquors, and another relating to the selling or giving away thereof by any person, is broad enough to include the selling or giving away of the same whether at a place of business or not.

[2] ID.-JD.-SINGLE SALE-VIOLATION OF ORDINANCE.-A single · sale of intoxicating liquors is sufficient to constitute a violation of the latter clause.

[3] ID.-CONSTITUTIONAL LAW--VALID ENACTMENT.—The power to pass such an ordinance is conferred by section 11 of article II of the constitution.

14] ID.-ID.-RIGHT OF SERVICE OF LIQUOR IN HOME-CLUB-FIRESIDE OF MEMBER-QUESTION OF FACT.-The question whether or not a club is the bona fide fireside of one claiming the protective right from prosecution for the violation of a prohibitory liquor ordinance, in offering a glass of intoxicating liquor to a guest, must depend on the facts of each particular case.

[5] ID. SOCIAL CLUB-SERVICE OF LIQUOR TO MEMBERS-FURNISHING FROM COMMON STOCK-SALE-VIOLATION OF ORDINANCE.-A furnishing and delivery of intoxicating liquors by a member of a social club to various other members, is a sale thereof by the club and in violation of an ordinance prohibiting the sale of intoxicating liquors by any person, where the same is taken from the common stock kept by the club for such members as hold tickets for "supplies."

[6] ID.-D.-ID.-ID.-TICKET SYSTEM-CHARACTER OF TRANSACTION UNCHANGED.-It is held, that the use of the written order and deposit and ticket in the manner shown in the record in this case, does not change the transaction.

For Petitioner-John D. Pitts.

For Respondent-Ralph E. Swing.

BY THE COUrt.

Habeas Corpus. Petitioner was found guilty of violating a prohibitory liquor ordinance of the city of Upland and sentenced to pay a fine of fifty dollars with, the alternative of imprisonment of one day for each dollar of fine. On application of his attorney to this court a writ was issued against the city marshal of Upland, in whose custody petitioner was detained, and the matter is before us for hearing upon the sufficiency of the petition.

The complaint and a stipulated statement of the evidence upon which the conviction was had are made part of the petition. The complaint charges that the defendant did . . . wilfully and unlawfully sell, furnish, distribute, deliver and give away, and for a long time prior thereto had been wilfully and unlawfully selling, furnishing, distributing and giving away, spirituous and malt intoxicating liquors, to-wit, whisky and beer. The portion of the ordinance necessary to be considered here reads: "Section 1. Any person, firm, corporation, club, or association that within the city of Upland, California, establishes, keeps, opens, maintains or carries on a place where spirituous, vinous or malt, or mixed liquors, or any alcoholic or any intoxicating drink or drinks, or SOcalled temperance beer, containing alcohol in any quantity whatever, are sold, kept for sale, offered for sale, furnished, distributed, divided, delivered, drank or given away; or, that within said city, either as owner, employee, agent, servant, clerk, or otherwise, sells, keeps for sale, offers for sale, furnishes, distributes, divides, delivers, or gives away, any spirituous, vinous, malt or mixed liquors, or any alcoholic or intoxicating drink or drinks, or so-called temperance beer containing alcohol in any quantity whatever, except as herein provided, shall be deemed guilty of a misdemeanor". The exception relates to sales for medical and mechanical purposes.

The evidence in the record shows that the defendant is a member of a secret society organized in Upland and incorporated in this state under the name of the "Protective Brotherhood of the Alamo"; the purposes of the order, as set forth in the articles of incorporation, are: "To promote charities, moral and social ethics, fraternalism, righteous citizenship, the brotherhood of its members and benevolence to all mankind. To encourage useful and profitable industries, to provide amusements, athletic sports, libraries, reading rooms, cafes, social halls and club rooms for its members. To pro

vide for sick and disabled members and the families of deceased members. To organize, charter, equip and institute subordniate lodges of the Protective Brotherhood of the Alamo, in this and other states. To purchase, store and distribute goods, wares and supplies for its members and the subordinate lodges of the Order." The organization leased and occupied a building formerly used as a hotel, and therein, in addition to lodge rooms, club rooms, including parlors, reception rooms, library and reading rooms, banquet hall dining room, sleeping apartments and committee rooms, maintained a bar from which members of the organization only were furnished with spirituous, vinous and malt liquors, for which there had been procured a United States retail liquor license. The method of disbursing the liquors, which was ordinarily attended to by a steward, was as follows: Any member who wished to become a patron of the bar deposited (presumably with the steward) such sum as he desired to invest in a ticket or tickets, bearing upon the face the figure 5 or a series of 5s, representing at five cents per figure the amount paid or deposited. Upon ordering liquors or other supplies, if any such were included, the number of 5s on the ticket which represented the value of the purchase, the figures being taken at a valuation of five cents each, were punched by the person delivering the goods. Thus, for a glass of beer, valued at five cents, one figure would be punched, and for a drink of whisky, valued at ten cents, two figures would be punched. No money passed directly at the time the liquor or supplies were received by the patron, but an order blank directing the board of directors to purchase for the member who bought the ticket certain specified supplies, liquors, lodgings, meals, cigars, etc., specified thereon, was signed and delivered at the time of the "deposit" for the ticket. To show that the organization was a bona fide fraternal and secret society, a showing is made of the value of the furniture and fixtures, lodge-room accessories and supplies on hand, making an aggregate of $4500. The vinous and malt liquors totalled only $16.50, each of the other supplies named having a greater value; even mineral waters reaching an aggregate of $37.50.

Amid these surroundings the defendant, in the absence of the steward, furnished and delivered to various members of said corporation holding the above mentioned tickets, both beer and whisky, punching and cancelling their respective tickets in the manner above described. The beer and whisky so furnished and delivered by defendant was taken and furnished from the common stock kept on hand by said corporation for the purpose of serving to members, on demand, holding tickets regularly issued, and was not the individual, separate property of the persons to whom defendant served the same.

[1] We are satisfied that the ordinance is broad enough in its terms to include the selling or giving away of intoxicating liquors, whether at a place of business or not. The two clauses of section 1 of the ordinance are stated in the disjunctive, the first relating to the keeping of a place and the second to a sale, gift or distribution by any person, either "as owner, employee, agent, servant, clerk, or otherwise". [2] That one sale may be a violation of the second clause is supported by the leading opinion in Ex parte Fedderwitz,

62 Pac. Rep. 935, 940. The ordinance before the court in that case, like the one here, was a prohibitory as distinguished from a license ordinance. Like this, also, it contained one clause applying to the keeping of a place of business, and another relating to the selling, offering for sale, and giving away of intoxicating liquors. Reviewing the opinion in Merced Co. v. Helm, 102 Cal. 159, in which it was said that a single sale did not constitute a violation of the ordinance there under consideration, Beatty, C. J., in the Fedderwitz opinion, says: "But that case has no bearing on the proposition. That was a civil action to recover a license which was imposed, and could only be imposed, for the privilege of conducting the business." A single sale was there held not to be carrying on the business in the sense of a license law. "It does not follow from this, however, that a single sale may not constitute a crime, if the ordinance so provides, as this clearly does." [3] It was also held in that case that the power to pass an ordinance such as the one before us is unquestionably conferred by section 11 of article XI of the Constitution of the state. Speaking with reference to earlier cases distinguished, it is said: "It was not decided or intimated that a prohibition of single sales was beyond the power of the municipality. In this case for the first time apparently-that question is directly involved, and we can only say that no law has been called to our attention with which the Berkeley ordinance conflicts." The dissenting opinions in that case discuss other matter considered in the leading opinion and do not affect the question before us, but McFarland, J., in his concurring opinion, limits his support of the decision in this respect by the declaration that the language of the complaint charged a sale, whereas the ordinance also included a "giving away." As to the latter he says: "So that by the terms of this ordinance it would be a public offense punishable by imprisonment for any person in Berkeley, in his own home, and at his own table or fireside, to offer a glass of wine or beer to a guest; and I desire to say that when a petitioner convicted of this time-honored hospitality shall come here for relief I will not feel myself precluded from again inquiring whether or not a personal right guaranteed by the constitution has been violated.”

Relying upon the principle announced in the reservation made by Justice McFarland and claiming the right to extend that reservation to the hospitality of the social club by virtue of what is said in the case of Cuzner v. The California Club, 38 Cal. Dec. 271, the petitioner contends that the bona fide social character of the club of which defendant was a member had been established. Cuzner-California Club case is readily distinguished from the case The before us in that it was a license case pure and simple. while here we have no question of when a traffic in liquors may be carried on without a license. The question is, did the defendant traffic in, sell or give away liquors in violation of an ordinance prohibiting each and all of these things? The matter before the supreme court in the California Club case was not: "Has a municipality the right to prohibit by ordinance the distribution of liquors in the manner shown in the record in that case?" but, Was the club violating a license ordinance by such a distribution without procuring a license? We fully approve and concur in the views of Justice