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cient to bring him within the category of a defendant gave to the plaintiff a letter which traveling employé, and thus to make this case one of those exceptional cases to which the general rule for which the petitioner herein contends has no application.

in effect provided that if certain options theretofore given to plaintiff by the defendant, and which by their terms expired on June 15, 1914, were accepted, plaintiff should be allowed 5 per cent. commission, of which, should the sum of $7,500 be received by defendant, on account of a sale of the land made pursuant to said option, on or before June 15, 1914, $1,500 should be paid to plaintiff on account of said commission. On June 8, 1914, the defendant entered into a contract with A. D. Bowen, a prospective purchaser introduced by the plaintiff, for the purchase of the property involved, which contract departed from the terms of said options, and stipulated that the total purchase price should be $63,500, payable as It follows that the writ should be denied, follows: June 11, 1914, $1,000; September and it is so ordered.

We are of the opinion that the evidence in this case fully sustains the position for which the respondent herein contends, and that the following authorities as a matter of law support that contention: Garratt-Callahan Co. v. Industrial Accident Commission, 171 Cal. 334, 153 Pac. 239; Brown v. Indr. Acc. Comm., 163 Pac. 664; Cameron v. Pillsbury, 173 Cal. 83, 159 Pac. 149; Kunze v. Detroit Shadetree Co., 192 Mich. 435, 158 N. W. 851, L. R. A. 1917A, 252; Milwaukee v. Althoff, 156 Wis. 68, 145 N. W. 238, L. R. A. 1916A, 327.

(35 Cal. App. 684)

1, 1914, $5,000; November 1, 1914, $10,000; November 1, 1915, $23,750; November 1, 1916, $23,750; and also provided that if the pur

PRINCE v. SELBY SMELTING & LEAD chaser should fail to make the payments due CO. (Civ. 2247.) on or before the 1st day of September, 1914,

(District Court of Appeals, First District, Cal- or on or before the 1st day of November, 1914,

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any payment theretofore made should become the property of the vendor, and all obligations under the agreement should cease and determine. Bowen paid the $1,000, the first amount due, but no further payment was ever made on account of the contract. On June 12, 1914, the defendant wrote to the plaintiff a letter which, after referring to the options held by plaintiff, and to which the letter of May 28th referred, set forth in detail the terms and dates upon which plaintiff's commission would become payable under the contract with Bowen-this re

After a contract was made for the sale of property providing for payment in installments, and that the vendor's obligations thereunder should cease on the purchaser's default, an agreement was made between the vendor and a broker, providing for payment of the broker's commission when payments of $5,000 and $10,000 were made by the purchaser, and specifically providing that, if the purchaser failed to carry out his contract, the broker should not be entitled to commission beyond the amount due at the time of the purchaser's default. Held that, where the purchaser was unable to make the payments of $5,000 and $10,000, and the vendor extended the time of pay- arrangement of terms and dates following ment on condition that if the payments were the particulars in which the contract entered not made at the time as so extended the contract into with Bowen departed from the options would lapse, and the payments were never made, the vendor was not liable to the broker for com upon which the letter of May 28th covering missions because of the extension of time or plaintiff's commission had been based-and because the broker had no notice thereof when stated that the first payment of commission the extension was made. would be made when the $5,000 due from Bowen on September 1, 1914, was paid, and that plaintiff was to receive the balance of his commission when Bowen made the fur

Appeal from Superior Court, City and County of San Francisco; Geo. A. Sturtevant, Judge.

Action by Charles M. Prince against the Selby Smelting & Lead Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Finlay Cook, of San Francisco, for appellant. Chickering & Gregory, of San Francisco, for respondent.

PER CURIAM. This is an action by plaintiff as a real estate broker to recover commission alleged to be due him for effecting a sale of real estate belonging to the defendant.

ther payment of $10,000 on November 1, 1914. It also specifically provided that if Bowen failed to carry out his contract concerning the payments due on November 1. 1914, and prior thereto, then the plaintiff should not be entitled to commission beyond the amount that might have been due at the time of Bowen's default. The terms of this letter as a modification of his original agreement as to commission were accepted by the plaintiff in writing. It thus appears that the obligations assumed by defendant to plaintiff by its letter of May 28th were by consent of both parties concerned superseded by the obligations created by the new agreement.

There is no dispute as to the facts, and the proposition of law involved is simple. The following is a brief synopsis of the steps in the transaction: On May 28, 1914, the On September 1, 1914, the date upon which

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

there became due from Bowen to the defendant the sum of $5,000, an extension of 30 days was granted to Bowen to make this payment upon his representation that he was unable to make it upon its due date. On November 1, 1914, the $5,000 still remaining unpaid, Bowen informed the defendant that he was unable to make either that payment or the one of $10,000 then also due, whereupon an extension of time until January 1, 1915, was granted upon the condition, however, that if these sums were not paid at that time, Bowen's contract would finally lapse. As before stated, the payments were never made; so it appears clear that under the plain terms of the letter of June 12, 1914, the rights of the plaintiff terminated by the final default of Bowen. We see no merit in

plaintiff's contention that the defendant, by granting to Bowen an extension of time in which to make his payments, became immediately liable to the plaintiff for his entire commission. It will be recalled that under this commission agreement the plaintiff was not entitled to anything unless Bowen paid $5,000 on September 1st. Therefore on that date, since Bowen had not made the payment, the defendant had a perfect right to terminate the contract, and by the express terms of the commission agreement the plaintiff would thereby have lost his rights to any commission; but, since the defendant did not elect to then declare the contract forfeited, but, on the contrary, gave Bowen some extensions of time, it is claimed that thereby the plaintiff acquired some rights superior to those which he would have enjoyed if the extensions had not been granted. Stress is here laid upon the point that the plaintiff was not informed of these extensions, at least at the time they were granted; but this is immaterial. The defendant could have declared Bowen's contract forfeited on September 1st, and there was no necessity on its part of notifying the plaintiff of that fact. Of course, if Bowen had paid his money during the time as so extended, then the plaintiff would have been entitled to his commission. In other words, this act of extension, so far from being in contravention of any of the rights of the plaintiff, was distinctly for his benefit. Before a party can complain of any modification to his agreement he must show some prejudice.

The case of Seymour v. St. Luke's Hospital, 28 App. Div. 125, 50 N. Y. Supp. 993, is referred to by plaintiff's counsel in his brief. On the particular points now under discussion that case is against him, because it was there held that the fact that the owner extended the time of the purchaser in which a payment must be made did not give the broker any additional rights, for it is only a change in the contract which puts it out of

the power of the owner to convey that would cause injury to the broker. The court said: "The extension of the time, while it was a modification of the contract, was one which caused no injury to the plaintiff, but rather tended to benefit him, because the indulgence to Samuel rendered it more likely that he would have been able to carry the entire contract infailed to make any effort to perform the conto effect; and when, after the modification, he tract as modified, his position with regard to it was precisely the same as it would have been entitle himself to a delivery of the deeds on the had he failed to perform the whole contract, and 2d of January, 1895. In each case the contract was at an end if the defendant chose to consider it so. The plaintiffs surely can have no greater right to insist that the defendant violated its contract with Samuel to his hurt, because he forfeited the contract for failure to than he would have done had he failed to perperform a part of it on the 2d of January, 1895, form the whole of it. * * * The only thing that it [the vendor] bound itself to do by its contract with Seymour was not to do any act which would put it out of its power to carry a contract into effect when Samuel should offer to perform it, and, if it continued able and ready to perform so long as Samuel desired the performance to be had or was willing to perform on his part, it did all that Seymour could require. The modification of the contract therefore, did not affect the rights of the parties."

The Seymour Case was affirmed without opinion, and is reported in 159 N. Y. 524, 53

N. E. 1132.

Larson v. Burroughs, 131 App. Div. 877, It was cited with approval in 116 N. Y. Supp. 358, in which the court said: "Before the plaintiff could recover, he must show either that the contract was carried out as indicated, or that nonperformance was the fault of the defendant."

The judgment is affirmed.

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At common law, a lessor is not bound to make repairs to a dwelling house, unless so required by express contract or covenant, the tenant taking the premises as they are, and having no right to involve the landlord in expenses for repairs without his consent.

2. LANDLORD AND TENANT 106, 150(5) FAILURE TO MAKE REPAIRS-REMEDIES OF TENANT-STATUTE.

Civ. Code, § 1941, requiring the landlord to make a dwelling house fit for its purpose, which is limited by section 1942, giving the tenant the option, after notice, to make repairs at the landlord's expense, or to vacate the premises, control in the absence of express contract to repair, and thereunder the tenant may treat the landlord's failure to repair as a breach of the lease and vacate, or may himself make the repairs at the landlord's expense, after notice, provided they do not exceed one month's rent. 3. LANDLORD AND TENANT 154 (2)-FAILURE TO MAKE REPAIRS-PERSONAL INJURY— LIABILITY.

A tenant or any member of his family sustaining personal injury from a breach of the landlord's covenant to repair cannot recover damages therefor in an action for breach of covenant.

4. LANDLORD AND TENANT ~169(3)—FAIL-[ord and the briefs is, Does the complaint URE TO MAKE REPAIRS-PERSONAL INJURY state a cause of action against the defend-SUFFICIENCY OF COMPLAINT.

ants?

Complaint, in an action, construed as an action ex delicto to recover damages for personal [1, 2] At the common law a lessor is not liinjury to a tenant's child resulting from the able to make repairs to a structure rented as landlord's negligent failure to make repairs, al- a dwelling house unless by force of an exleging the defect causing the injury to have been obvious and to have existed when the tenancy press contract or covenant; the tenant takes began, without alleging facts and circumstances the premises for better or worse, and cannot which would relieve the plaintiff of the infer- involve the landlord in expense for repairs ence of contributory negligence, was insufficient. without his consent. Van Every v. Ogg, 59 Appeal from Superior Court, Alameda Cal. 563. The Civil Code, however, in secCounty; Everett J. Brown, Judge. tion 1941, provides that the lessor of a buildAction by Harold F. Grazer, by Annie M. ing intended for the occupation of human beGrazer, his guardian, against Theresa Flana-ings must, in the absence of an agreement to gan and others. From a judgment entered the contrary, put it in a condition fit for such upon an order sustaining the demurrer to occupation, and repair all subsequent dilapiplaintiff's amended complaint, plaintiff ap-dations thereof which render it untenantable. peals. Affirmed. The succeeding section (1942) gives the option

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Ostrander, Clark & Carey and A. J. Wool- to the tenant, after notice to the landlord, to sey, all of Oakland, for appellant. Fitzgerald, make repairs not requiring an expenditure Abbott & Beardsley, of Oakland, for respond-of more than one month's rent, the same to

ents.

be deducted from the rent, or to vacate the premises and be discharged from performance of the conditions of the lease. In the absence of an express contract relating to repairs, sections 1941 and 1942 control; and in such case it is held that the statutory li ability of the lessor declared in 1941 is lim

KERRIGAN, J. This is an appeal from the judgment entered upon an order sustaining defendant's demurrer to plaintiff's amended complaint in an action brought to recover damages for personal injuries. The action is through the plaintiff's guard-ited by the provisions of 1942, so that for ian, and the injuries are alleged to have been sustained by plaintiff as a consequence of an explosion of gas occurring upon certain premises which had been rented to the plaintiff's parents by the owners thereof to be occupied as a dwelling.

failure to repair the lessee has either one of two remedies, viz.: (a) Treat the failure to repair as a breach of the lease and vacate the premises; or (b) himself make the repairs at the expense of the landlord after notice to him, providing they do not entail an expenditure of more than one month's rent. Van Every v. Ogg, supra; Sieber v. Blanc, 76 Cal. 173, 18 Pac. 260; Gately v. Campbell, 124 Cal. 520, 57 Pac. 567.

2 Underhill on Landlord and Tenant, p. 849; 18 Am. & Eng. Ency. of Law, 234, 235; Jones on Landlord and Tenant, § 592; Anderson v. Robinson, 182 Ala. 615, 62 South. 512, s. c. 47 L. R. A. (N. S.) 330, Ann. Cas. 1915D, 829.

Stripped of legal verbiage, it appears from the complaint that on the 23d day of March, 1915, the plaintiff's mother and a real estate agent, one of the defendants, visited the house in question, and after an inspection of [3] If this is to be regarded as an action the same and some negotiations, it was for damages for breach of the landlord's covagreed that the plaintiff's parents should be enant to repair, the great weight of authorcome the tenants of the property at a month- ity agrees that in such an action on the part ly rental of $18.50; that while the rent of the tenant or any member of his family should not commence until April the tenant damages for personal injuries are not recovshould have the privilege of taking posses-erable. sion on the 25th of March, and it was further agreed that the owners of the property represented by the agent should place the premises in proper repair for habitation, and that they, through their said agent, "in particular did promise to place in proper condition for use a certain gas pipe in said dwelling house which was at the time without a cap or other appliance to prevent the escape of gas." It is also alleged in the amended complaint that on said 25th day of March, while the plaintiff was assisting his parents in moving into the dwelling house, and while in that portion of the house in which said uncapped gaspipe was situated, there was an explosion of escaped gas from the uncapped pipe, which explosion caused the personal injuries set forth in the complaint. The demurrer was general and special, and the question presented by the rec

*

[4] On the other hand, if this is to be taken to be an action ex delicto to recover damages resulting from the negligent failure of the landlord to perform his legal duty by making the repair in question, then we are satisfied that the complaint fails to state a cause of action, and hence that the demurrer was properly sustained. The defect to which the plaintiff attributes the injuries complained of is alleged to have been an obvious defect, and to have been known to exist before the tenancy in question began. Having thus averred the defect to have been obvious, it was incumbent upon the plaintiff to have further set forth in the complaint such of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

facts and circumstances attending and explaining the accident, if such exist, as would have relieved the plaintiff's case of the inference of contributory negligence, which otherwise would arise from his express averment of the obvious nature of the defect which was the immediate cause of the injuries complained of. Having failed or being unable to do this, the complaint did not state a cause of action. Hatch v. McCloud River L. Co., 150 Cal. 111, 88 Pac. 355; Callahan v. Loughran, 102 Cal. 476, 36 Pac. 835.

court of Solano county pursuant to section 1138 of the Code of Civil Procedure. Since 1884 the town of Suisun City has been a municipal corporation of the sixth class, and has never owned nor controlled any public works for supplying artificial light. From September, 1900, until June 1, 1910, one Leonard Prior owned and operated an electric distributing system embracing poles and wires suspended therefrom, constructed on the streets and highways of said town, and used for supplying the town and its inhabitants with electric light and power. On January 3, 1905, the board of trustees adopted an ordinance purporting to grant to Prior and his assigns the franchise to construct and RICH- maintain poles and wires upon said streets for the purpose of transmitting electric energy, and to sell and dispose of electricity for light and power. Section 12 of the ordinance

It follows that the trial court correctly sustained the demurrer to the amended complaint. The judgment is affirmed.

We concur: LENNON, P. J.; ARDS, J.

(35 Cal. App. 380)

TOWN OF SUISUN CITY v. PACIFIC GAS | provides that the successful bidder and his & ELECTRIC CO. (Civ. 1678.)

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1. MUNICIPAL CORPORATIONS 285- FRANCHISE FOR SUPPLYING ELECTRICITY-VALIDITY.

assigns must, during the life of the franchise, pay to said town 2 per cent. of the gross annual receipts arising from the use, operation, and possession of said electric system. On June 1, 1910, Prior sold to defendant said electric plant and business connected therewith and all the rights granted to him by section 19 of article 11 of the Constitution of this state, and whatever franchise he received by virtue of said ordinance of Jan

the defendant has owned and operated all of said property for the purpose of supplying said town and its inhabitants with electric light and power, no poles or wires being used exclusively for light or power purposes. the electricity for power and for light being delivered, measured, and charged for sepa

Under St. 1901, p. 265, § 1, as to granting by municipality of privilege to locate poles or wires for transmitting "heat and power" and sections 3 and 5 as to publication of the appli-uary 3, 1905. Ever since said June 1, 1910. cation for the franchise and percentage to be paid to the municipality, an ordinance, purporting to grant a franchise to construct and maintain poles and wires for the purpose of transmitting and selling electricity for "light and power" was void, in so far as it attempted to confer the privilege of furnishing electricity for lighting purposes, and a charge could only be made for the latter or "power" franchise, in view of Const. art. 11, § 19, granting to pub-rately, and the receipts therefor being kept lic service corporations engaged in the sale of in separate accounts. electricity the right to enter the streets of a city and use the same for laying down pipes, etc., for the purpose of supplying electricity to the inhabitants for "illuminating" purposes. 2. MUNICIPAL CORPORATIONS 285-VALIDITY OF ORDINANCE-ESTOPPEL.

The contention of defendant, as set forth in said agreed statement of facts, is that said ordinance could and did legally grant only a franchise for the purpose of transmitting electric power, and obligated the holder thereof to pay to said town 2 per cent. only of the gross annual receipts from the sale of said power, and could not, and did not legally, obligate the holder thereof to pay any percentage for the sale of electricity for lighting purposes, as the franchise and privilege Appeal from Superior Court, Solano Coun- of using said streets and highways for the ty; W. T. O'Donnell, Judge.

As plaintiff town had no power to charge a percentage on the gross annual receipts arising from the operation of an electric system for lighting, defendant, owner of the system, would not be estopped to deny that so much of an ordinance as attempted to impose such charge

was unenforceable.

Action by Town of Suisun City against the Pacific Gas & Electric Company. From the judgment rendered, defendant appeals. Modified and affirmed.

Wm. B. Bosley and Leo H. Susman, both of San Francisco, for appellant. Theodore W. Chester, of Sacramento (George J. Raymond, of Sacramento, of counsel), for respondent.

BURNETT, J. This appeal is from a judgment for $927.84 and interest upon an agreed statement of facts submitted to the superior

purpose of furnishing illuminating light were granted by section 19 of article 11 of the state Constitution. On the other hand, plaintiff contends that said ordinance could and did legally grant the franchise to construct, erect, and maintain said poles and wires for both of said purposes, and obligated the holder thereof to pay said percentage of the sales for power and light to said town and its inhabitants.

Another position taken by respondent is "that, even if the lighting privilege is covered by the Constitution, the gas company

ally addressed, but whether the constitutional provision was broad enough to include the franchise in question was so fundamental and obtrusive as necessarily to challenge the attention of the court. It could hardly be overlooked, and it is altogether probable that of its own accord and for that reason the court would have reversed the cause if it had deemed the franchise not embraced within said provision of the Constitution. In the course of said opinion it is declared:

"The Legislature, therefore, cannot modify or change the provisions of said section 19, article chise of supplying the town of Etna with arti11, above quoted, as to the privilege or franficial light. The Constitution intended that there should be no restriction upon competition in supplying these prime necessities as would granted to the highest bidder, for such bidder necessarily result if the privilege could only be would necessarily secure an exclusive right to the exercise of the franchise; the only condiof the municipality 'to regulate the charges tion imposed by the Constitution being the right thereof.'"

admittedly received a franchise it was not, that appellant claimed a reversal on other entitled to under the Constitution, to wit, grounds, and to them the opinion was specificthe power privilege, and this is ample consideration for the obligation to pay 2 per cent. of the total receipts, as provided in the franchise, which is a contract between the parties. Furthermore, the gas company is now estopped from attacking the validity of this provision." As indicating the scope and purpose of said provision, reference is made by respondent to the debate in the constitutional convention wherein was no allusion to electricity, but the subject was treated as though the privilege of furnishing gas and water were the only consideration in the minds of the members of the convention. It is claimed, furthermore, that in consonance with a familiar rule of construction, the particular provision in the Constitution-"and of laying down pipes and conduits therein and connections therewith"-is a specific limitation upon the general words, "have the privilege of using the streets," and that "laying down pipes and conduits therein" cannot reasonably be construed as authorizing the construction and maintenance of poles and wires, and to so hold is to read into the Constitution something that its language does not import. In this connection, it is further asserted that "the provisions of the Constitution are mandatory, and the mode prescribed is the measure of power," and in further support of its contention, this general principle of construction is invoked, "that grants of franchises and special privileges by the state to private persons or corporations are to be construed most strongly in favor of the public, and that where the privilege claimed is doubtful, nothing is to be taken by mere implication as against public rights."

[1] The position of respondent is clearly stated, strongly argued, and imposingly supported by respectable authority, and there is much reason for the view that it constitutes a correct exposition of said constitutional provision, but the question has been decided otherwise by the Supreme Court, and we are bound by that decision.

In Pereria v. Wallace, 129 Cal. 397, 62 Pac. 61, the Supreme Court held that said constitutional section included electric lights. It declared unconstitutional the sale of franchise act of 1897 in so far as it attempted to make the right or franchise to erect poles or wires for lighting purposes the subject of competitive bidding; and it affirmed the judgment of the lower court, ordering a writ of mandate to issue, requiring the defendants to grant to plaintiff the privilege of erecting and maintaining poles and wires along the streets of said town for the purpose of conveying electricity for power and lighting purposes to be furnished to the inhabitants thereof.

It is claimed by respondent that the question before us was not raised or discussed in that case, and, therefore, the decision should not be considered as controlling. It is true

If the franchise to erect and maintain poles and wires for the purpose of furnishing electricity for lighting purposes was conferred by said provision of the Constitution, the attempted grant of said privilege by said ordinance of respondent was necessarily ineffective and void, and the only franchise thereby conveyed was for the construction and maintenance of pole and wire lines for transmitting electric power, and it would follow, of course, that a charge could be made by the city only for the latter franchise, and that no burden or obligation could be legally imposed upon appellant for the lighting franchise other than what is permitted by said section of the Constitution, which does not include the payment of any percentage or other sum, but is limited to enacting measures relating to damages to the streets and indemnity therefor. In Re Johnston, 137 Cal. 115, 69 Pac. 973, it is said:

"The designation of 'damages and indemnity for damages' as the subject upon which the municipality may prescribe regulations in regard to laying the pipes is a limitation upon its authority over the matter, and a prohibition from prescribing regulations upon any other subject connected with the exercise of the privilege. When the sovereign authority of the state, eilature, has created a right and expressed and ther in its Constitution or through its Legisdefined the conditions under which it may be enjoyed, it is not within the province of a municipality, where such right is sought to be exercised or enjoyed, to impose additional burdens or terms as a condition to its exercise.'

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And it was held by this court in Town of St. Helena v. Ewer, 26 Cal. App. 191, 146 Pac. 191, that the rule is not affected by the fact that the applicant for a franchise granted by said section of the Constitution agrees to pay a certain percentage of his gross earnings arising from its use to the municipality which attempted to grant such franchise. Therein it is said:

"The contention that the claim may be enforced as the subject of private contract between

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