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.

9 Cal. App. 38 DUFFY LUMBER CO. v. STANTON et al. (Civ. 480.)

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

MECHANICS' LIENS (§ 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.

9 Cal. App. 9 TILDEN v. GOLDY MACH. CO. (Civ. 505.) (Court of Appeal, Third District, California. Sept. 10, 1908.)

1. BILLS AND NOTES (§ 395*)-NON NEGOTIABLE NOTE-BLANK INDORSEMENT-DEMAND— NOTICE.

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. §§ 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, I 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

operation of an engine thereon. S. N. Goldy was a director, vice president, and general manager of the company. He and H. F. Emme had been appointed the executive committee of the company. C. H. Geldert was its secretary and also a director. He was also the attorney in fact of B. B. Tilden, payee of the note. W. T. Garrett, its maker, was the agent of the company for the sale of its stock, and actively engaged in promoting the enterprise chiefly by the sale of stock. The company was pressed for money to pay its employés and to meet its engagements, and its stock did not find ready sale. Under these circumstances Goldy persuaded Geldert to make a loan of $10,000 to the company for Tilden, plaintiff here. It was agreed that Garrett should make a note for $15,000, and that the company would indorse it; the avowed object being to avoid a note by the company which might affect its credit when appearing on the books, and injuriously affect the sale of stock. Garrett accordingly executed the note in this nonnegotiable form and the executive committee of the company indorsed it as shown. It was delivered to Geldert as Tilden's attorney in fact, who hypothecated securities belonging to Tilden with the Garden City Bank & Trust Company of San Jose, obtained $10,000 thereon, and paid this money directly to the Goldy Machine Company which used it in its business. At the time of the execution of the note Garrett entered into an agreement with the company by which he subscribed for $15,000 of its stock, the proceeds of the sale of which were to go, first, to pay the $10,000 furnished the company and take up the Tilden note, and $5,000 was to go to Garrett as commissions for the sale of the stock-a hard bargain for the company, but advisedly entered into under stress of circumstances. Some importance is attached to this latter agreement by defendant, and it is claimed that it was part of the transaction for the loan, but the evidence was that neither Tilden nor his attorney in fact was a party to it and never assented to it, but refused to have anything to do with it. The trial court doubtless so considered the fact to be, and so also must we. Demand of payment of the note was made upon Garrett and refused, and hence this suit.

By subdivision 1, § 22, of the company's by-laws, certain powers were conferred upon the board of directors: "(1) To delegate any of the powers of the board in the course of the current business of the company to any standing or special committee, or to any officer or agent, and to appoint any persons to be the agents of the company, with such powers (including the power to subdelegate) and upon such terms as they think fit." It thus appears that the directors were authorized to delegate "any of the powers of the board in the course of the current business of the company." Article 5 of the charter

of the company is as follows: "The board of directors are expressly authorized by a resolution passed by a majority vote of the whole board, under suitable provision of the by-laws, to designate two or more of their number to constitute an executive committee, which committee shall for the time being, as provided in said resolution, or in the by-laws, have and exercise all the powers of the board of directors which may be lawfully delegated in the management of the business and affairs of the company, and shall have power to authorize the sale of the company to be affixed to all papers which may require it." Pursuant to the foregoing provisions of the charter and by-laws, the board of directors on January 16, 1905, duly passed the following resolution: "Resolved: That Messrs. S. N. Goldy and H. F. Emme be and hereby are designated as members of the executive committee with authority to exercise all the powers of the board in the current business of the company while the board is not in session." Acting under its appointment, the executive committee on March 24, 1905, passed the following resolution, as appears from its minutes: "Whereas, in order for the said William T. Garrett to secure the said sum of ten thousand dollars for investment in this company it is necessary for him to draw a note for fifteen thousand dollars in favor of B. B. Tilden, the same to be endorsed by the Goldy Machine Company: Therefore, be it resolved; that considering the necessity of securing this investment the Executive Committee endorses said note in the name of the Company. Upon motion the meeting adjourned. [Signed] S. N. Goldy, H. F. Emme, Executive Committee." The execution of the guaranty indorsement by the executive committee is fully proved, and also that the company received the money paid by Tilden. We do not entertain any doubt but that the authority to indorse the note was conferred upon the executive committee. It seems to us that it was entered into in the course of the current business and in reality it was the obligation of the company as fully appears from the evidence, and not Garrett's, who was but an accommodation maker. Besides, if this be not so, still, under the circumstances attending the transaction, showing among other things that the company received the money and knowingly used it in its business, it is not in a position now to question the authority under which it obtained the money. It is estopped to set up such defense. 10 Cyc. 1067, 1008; Lakestreet Electrical Railroad Company v. Carmichael, 184 Ill. 348, 56 N. E. 373; Main v. Casserly, 67 Cal. 127, 7 Pac. 426; Gribble v. Columbus Brewing Co., 100 Cal. 67, 34 Pac. 527.

The judgment and order are affirmed.

We concur: BURNETT, J.; HART, J.

Cal. App. 20 VANCE v. ATCHISON, T. & S. F. RY. CO. (Civ. 488.)

(Court of Appeal. Sept. 11, 1908.

Second District, California. Rehearing Denied Oct. 10, 1908.)

1. RAILROADS (§ 327*)-ACCIDENTS AT CRossINGS-DUTY TO LOOK AND LISTEN.

It is the duty of a driver in approaching a railroad crossing to look and listen before entering a place of danger.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1043-1056; Dec. Dig. § 327.*] 2. RAILROADS (§ 327*)-ACCIDENTS AT CROSSINGS-DUTY TO LOOK.

It is only where, if a driver approaching a railroad crossing had looked, he could have seen the approaching train, that he can be held to have been negligent in omitting to do so.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1044; Dec. Dig. § 327.*] 3. RAILROADS (§ 350*)-ACCIDENTS AT CROSSINGS- CONTRIBUTORY NEGLIGENCE - QUESTIONS FOR JURY.

A driver of a six-horse team who, in approaching a railroad track, where the view was obstructed, stopped and listened, was not guilty of contributory negligence as a matter of law because he did not leave his team unattended and proceed to a point where a view of the track could be had.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1179; Dec. Dig. § 350.*]

4. RAILROADS (§ 312*)-ACCIDENTS AT CROSSINGS SIGNALS-"ROAD."

A road intended for use in connection with a limekiln, and used mostly by those having business there, is, nevertheless, a road within Civ. Code, § 486, requiring signals where a railroad crosses any street, road, or highway.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 993, 994; Dec. Dig. § 312.* For other definitions, see Words and Phrases, vol. 7, pp. 6250-6254.]

Appeal from Superior Court, Kern County; Paul W. Bennett, Judge.

Action by A. Vance against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

E. W. Camp and U. T. Clotfelter, for appellant. W. W. Kaye, for respondent.

ALLEN, P. J. Appeal by defendant from a judgment based upon the verdict of a jury and from an order denying a new trial in an action brought to recover damages occasioned by defendant's negligence in the operation of its trains.

The proposition is not, and cannot well be, questioned that there is evidence in the record warranting the implied finding of negli- | gence upon the defendant's part. Appellant, however, contends that the record discloses such contributory negligence upon the part of plaintiff's servant in charge of the property injured as to preclude recovery.

Upon the trial there was evidence offered by plaintiff tending to show that the servant of plaintiff, standing upon the front end of a wagon, was driving a six-horse team by means of a check line. The road upon which

he was traveling was intended for use in connection with a limekiln, and was mostly used by those having business at such kiln. It crossed the defendant's main and side tracks, intersecting the main road which paralleled such tracks. The driver was proceeding with his team from the kiln toward the railroad track, the view along which to the east was entirely obstructed between the kiln and side track. When the lead horses

were about 20 feet from the nearest side track, upon which a box car was standing, which was one of the obstructions to the view eastwardly, one of the tugs became disarranged, and the driver left his place on the wagon and rearranged the tug. While on the ground he listened for the approach of a train, and heard none. He could not from this point see eastwardly up the track any distance on account of this box car. Hearing no approaching train, the driver resumed his place on the front end of the wagon and started to drive across the track. When he was at a point where he could obtain a view along the track to the east, the leaders were within three or four feet of the main track. At this point he saw the train, and was for the first time in a position where it was possible for him to see an approaching train from the east. The train was then only about 50 feet away, and was running at a high rate of speed. Here, for the first time, the men in charge of the train employed the whistle. Danger being imminent, the driver applied the brakes and jumped from the wagon, but the collision was inevitable.

It cannot be questioned that it was the duty of the driver in approaching the railroad track to look and listen before entering upon a place of danger. The duty of looking, however, is enjoined only when by its exercise he could have discovered the approach of the train. "It is only when, if he had made the observation, he could have seen the coming of the train, that he can be said to have been negligent in omitting to do so." Martin v. Southern Pacific Co., 150 Cal. 128, 88 Pac. 701. That by reason of obstructions the approach of the train could not be discovered by sight until the lead horses were within three or four feet of the track is in evidence; that he listened carefully before starting to drive across the track, and that he continued so to do, is not disputed; that he made every effort to avoid the collision after discovery of the train is established. "Negligence is a question of fact for the jury, and the law has fixed no exact standard of care other than the general one that it must be such as a reasonably prudent man would exercise in the particular circumstances. Hence in ordinary cases it is peculiarly a question for the jury or court trying the cause to decide as a matter of fact whether or not the person was culpably negligent." Scott et al. V. San Bernardino Val. Tr. Co. (Cal.) 93 Pac. 677.

The jury by its verdict determined that the conduct of the driver was not culpably negligent, and we cannot, considering the circumstances under which he was placed, say that as a matter of law its determination was improper. To say that the driver did not act as a reasonably prudent man would act under like circumstances, and that as a matter of law he was culpably negligent, would be to say that one alone in charge of a team of this character, when approaching a railroad track where the view is obstructed, is negligent, notwithstanding he has stopped and listened, unless he leaves his team unattended upon the road and proceeds on foot to a point where a view of the track could be had. We do not believe that the law enjoins such duty upon one under those circumstances. The road upon which the team was traveling, although used mostly by those having business at the limekiln, is, nevertheless, one of the roads comprehended within the provisions of section 486 of the Civil Code (Orcutt v. Pacific Coast Ry. Co., 85 Cal. 291, 24 Pac. 661), and the precautions required upon the part of those in charge of trains in that section prescribed apply to the crossing of a road so used.

The charge of the court excepted to was not improper, wherein the duty of defendant with respect to public crossings was stated. The uncontradicted evidence appearing in the record was such as to render inapplicable charges offered by the defendant and refused which related to the duty of one approaching the track when the view is unobstructed.

We perceive no error in the record, and the judgment and order are affirmed.

9 Cal. App. 52 JOHNSON et al. v. WITHERS et al. (Civ. 525.)

(Court of Appeal, Second District, California. September 16, 1908. Rehearing Denied by Supreme Court Nov. 13, 1908.)

1. FRAUD (§ 11*)-REPRESENTATION OF FACT. A representation by a vendor to a purchaser of the amount of mineral in place in the premises as disclosed by the report of an expert is a representation of fact, and is not an expression of opinion as to the character of the premises or as to the future profits that might be realized from a purchase.

[Ed. Note. For other cases, see Fraud, Cent. Dig. § 12; Dec. Dig. § 11.*]

2. FRAUD ($ 11*)-REPRESENTATION OF FACT. An expert opinion cannot be misstated knowingly without incurring legal liability for the fraud, the same as for the willful misstatement of any other fact.

[Ed. Note. For other cases, see Fraud, Cent. Dig. § 12; Dec. Dig. § 11.*]

3. FRAUD (§ 11*)-CANCELLATION OF INSTRUMENTS-REPRESENTATION OF FACT-MISTAKE.

Where a representation is a representation of a fact for the purpose of declaring a fraud, it is also a representation of a fact when con

sidered in connection with a mistake, justifying a rescission of a contract.

[Ed. Note.-For other cases, see Fraud, Dec. Dig. § 11.*]

4. VENDOR AND PURCHASER (§ 31*)-CONTRACT -CANCELLATION-GROUNDS-MISTAKE.

A vendor of mining property represented to the purchaser that in the opinion of an expert there were 50,000 tons of mineral in place. The report of the expert showed on its face that the amount of mineral was but 5,000 tons. The vendor relied on the express misstatement of the results of expert's examination and of the contents of his report. The purchaser relied on the mistake and contracted to purchase the property. Held, that the mistake was a mutual mistake, and equity would relieve the purchaser from his contract.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 36; Dec. Dig. § 31.*]

Appeal from Superior Court, Los Angeles County; W. P. James, Judge.

Action by L. M. Johnson and another against W. S. Withers and another. From a judgment for plaintiff and from an order denying a motion for new trial, defendants appeal. Affirmed.

Conkling & Bretherton, for appellants. Cryer & Tuttle, for respondents.

TAGGART, J. Action for return of a $1,000 cash deposit made on a contract to purchase an interest in mining property, and for the rescission of the contract. Judgment for plaintiffs. Appeals from judgment and from order denying defendants' motion for a new trial.

The rescission of contract was made and the judgment of the court based upon the ground of a mutual mistake of facts relating to the subject-matter. The complaint states two causes of action: The first alleges the purchase by plaintiffs from defendant Withers of a two-thirds interest in a half section of land in Riverside county for $20,000; $1,000 cash, balance in two deferred payments, and the placing of the deed of the property and the cash payment or deposit in escrow with the defendant corporation to be held until the purchase price should be fully paid up. As an inducement to plaintiffs to purchase the property, defendant Withers represented it to be of peculiar value by reason of the presence of "magnesite"; that at a particular point on the property there was a large deposit of said mineral; that said deposit had been uncovered and disclosed by means of certain discovery shafts, and that defendant Withers had caused said property to be carefully examined and inspected by a competent engineer and mineralogist, and the quantity of magnesite so discovered and in place in said portion of the property amounted to 50,000 tons. That plaintiffs were ignorant of mines and minerals and the methods of measuring and estimating the quantity of mineral in place, and relied wholly and entirely upon the representations made by Withers and the estimates of the