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state, and will not be allowed to control where the conditions were those never contemplated by the common law. — Jones v. California Development Co., 173 Cal, 565, 160 Pac. 823.

2. The statute of uses is not a part of the common law to which this section refers. -Tennant v. John Tennant Memorial Home, 167 Cal. 570, 140 Pac. 242.

3. The common law is the rule of decision only in those cases where it is not repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state. The common law which denied the right of a public officer to resign his office without the consent of the appointing power manifested by an express acceptance of the resignation or in some other

mode equally significant of its intention so to do is not the rule in this state.-People (ex rel. Attorney-General) v. Marsh, 30 Cal. App. 424, 159 Pac. 191.

§ 4484.

1. Applicable to subdivisions of sections. -Where there are conflicting provisions in different sections of the same chapter or article, "the provisions of the sections last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article." The rule is founded in reason, and it exists independently of the code. It therefore for like reasons applies to conflicting provisions of different subdivisions of a section.-Turner v. Wilson, 171 Cal, 600, 154 Pac. 2.


8 4.

tract or for torts connected with contract.

Power & Irr. Co. v. Bank of Woodland, 226 1. Construction of code. — All rules of

Fed. 698. common law are subject to the provisions

"Claim."-Estate of Cutting, 174 Cal. 104, of our statutes; statutes in derogation

161 Pac. 1137. thereof are not now to be constrictly con

"Consideration," for contract, defined.strued, and the provisions of the codes con

Pacific Imp. Co. v. Maxwell, 26 Cal. App. 265, trary thereto are to be construed in ac

146 Pac. 900. cordance with this section. — Tennant v.

"Control."-Western Indemnity Co. v. Pills. John Tennant Memorial Home, 167 Cal. 570,

bury, 172 Cal. 807, 159 Pac. 721. 140 Pac, 242.

"Costs and expenses." - Hayne v. San

Francisco, 53 Cal. Dec. 46, 162 Pac. 625. § 14.

"Delivery," as relates to transfer, defined. CERTAIN WORDS AND PHRASES

--Williams v. Kidd, 170 Cal. 631, Ann, Cas. DEFINED.

1916 E 703, 151 Pac. 1. "Abandoned,” in section 224, Civil Code, "Dependent," under provisions of section is to be given its ordinary meaning as 1970 of Civil Code, who is a.-Balaklala defined by Webster.-In re Cordy, 146 Pac. Consol. Copper Co. v. Reardon, 220 Fed. 584. 533, affirmed 169 Cal. 150, 146 Pac. 534.

"Due," in a building contract, upon which "Adopt" is a term properly applicable only this claim of the owner is founded, as apto contracts by a party acting or assuming plied to a debt or obligation to pay money, to act for another.-Snook v. Page, 29 Cal. does not always mean that the money is App. 246, 155 Pac. 107.

then immediately payable. It may be so “Adverse party."-Caruthers Building Co. used, but it often merely denotes the idea v, Johnson, 174 Cal. 20, 161 Pac. 985.

of a complete debt, an existing obligation, "Accident." The expression, "accident," or money fully earned, but not payable until is used in the popular and ordinary sense a future time or until the happening of of the word, as denoting an unlooked for another event.-Ahlgren v. Walsh, 27 Cal. mishap or an untoward event which is not 173, 158 Pac. 748. expected or designed.-Southwestern Surety "District."-San Bernardino v. Horton, 173 Ins. Co. v. Pillsbury, 172 Cal. 768, 158 Pac. Cal. 396, 160 Pac. 231. 762.

"Each."—Brazil v. Azevedo, 32 Cal. App. "All other usual terms and conditions."- 364, 162 Pac. 1049. The Carlos, 237 Fed. 731.

“Faultless." — Temple v. Gordon, 31 Cal. "Allowed by law." -- Alameda County v. App. 127, 160 Pac. 983. Cook, 32 Cal. App. 165, 162 Pac. 405.

"Fees allowed by law."-Alameda County "Any statute."-Smithson v. Atchison etc. v. Cook, 32 Cal. App. 165, 162 Pac. 405.. R. Co., 174 Cal. 148, 162 Pac. 111.

"Final judgment."-Colusa & H. R. R. Co. "Apartment" as portion or designation v. Superior Court, 31 Cal. App. 746, 161 Pac. of premises, effect of.--Fox v. Windemere 1011. Hotel Apartment Co., 30 Cal. App. 162, 157 "Furnished” means to supply; to offer for Pac. 820.

use, to give, to hand.-People v. Joy, 30 Cal. "Appearance.”—United States v. Leles, 236 App. 36, 157 Pac. 507. Fed. 784.

"Grounds."—People v. Preciado, 31 Cal. "Appendages."-City of Sacramento v. Pa App. 519, 160 Pac. 1090. cific Gas & Electric Co., 173 Cal. 787, 161 “In good faith" has a settled and wellPac. 978.

defined meaning, which generally imports "Assessed."- People's Water Co. v. Baro that in any given case the transaction meo, 31 Cal. App. 270, 160 Pac. 574.

involved was honestly conceived and con"Children." In the ordinary and gram summated without collusion, fraud or knowlmatical sense the word "children" implies edge of fraud, and without intent to assist immediate offspring. This is its natural and in a fraudulent or otherwise unlawful deprimary sense.-Estate of Willson, 6 Cof. sign.--Heney v. Sutro, 28 Cal. App. 698, 153 Prob. Dec. 34.

Pac. 972. "Children" in will, includes grandchildren, "Income."--Union Hollywood Water Co. v. When.-Estate of Wilson, 171 Cal. 449, 153 Carter, 238 Fed. 329. Pac. 927.

"Intermediate employee."-Kirkpatrick v. "Choses in action" includes all debts and Industrial Accident Commission, 31 Cal. App. all claims for damages for breach of con- 668, 161 Pac. 274.

"Investment," as commonly employed, has assuming to act for another. — Snook v. been judicially defined to mean the putting Page, 29 Cal. App. 246, 155 Pac. 107. out of money on interest in some form more "Ratify” refers to the act of another.or less permanent so as to yield an income. Snook v. Page, 29 Cal. App. 246, 155 Pac. 107. --Dean v. Hawes, 29 Cal. App. 689, 157 Pac.

"Resign."-People v. Marsh, 30 Cal. App. 558.

424, 159 Pac. 191. "Last clear chance."-Tucker v. Pacific R.

"Road," as used in section 468, was inCo., 174 Cal. 42, 161 Pac. 1147.

tended to include the main line and all "Lawful issue."-Wolf v. Gall, 32 Cal. App.

branches, both of original and consolidated 286, 163 Pac. 346.

companies. — Northwestern Pac. R. Co. v. "Levied."-People's Water Co. v. Boromeo, Lambert, 166 Cal. 749, 137 Pac. 1116. 31 Cal. App. 270, 160 Pac. 574.

"Secured."-J. I. Case Threshing Machine "Lowest responsible bidder.” — West V. Co. v. Copren Bros. 32 Cal. App. 194 161 Oakland, 30 Cal. App. 556, 159 Pac. 202.

Pac. 647. "Matter."—Bruschi v. Cooper, 30 Cal. App.

"Selling.”—People v. Winkler, 174 Cal. 133, 682, 159 Pac. 728.

162 Pac. 109. "Maintain" an action, as used in $ 2468

"Stock" and "shares" are not interchangeof Civil Code, means to commence, institute,

able. Film Producers v. Jordan, 171 Cal. begin or bring.–Creditors' Adjustment Co.

664, 154 Pac. 604. v. Rossi, 26 Cal. App. 725, 148 Pac. 528.

"Stockholder," in section 3, article XII of "May."-Ex parte Cencinino, 31 Cal. App. 238, 160 Pac. 167.

the constitution, is synonymous with "owner May" means "must" in by-law fixing

of shares" in section 298 of Civil Code.

Western Pac. R. Co. v. Godfrey, 166 Cal. date for holding annual meeting of corpora

346, Ann. Cas. 1915B 825, 136 Pac. 284. tion.-Strappler v. El Dora Oil Co., 27 Cal. App. 516, 150 Pac. 643.

"Such declaration." — In re Valhoff, 238 "Merchantable" is synonymous with "mar

Fed. 405. ketable,” when used in connection with the

"Swamp, overflowed, or other public lands title in real estate.-Agnew v. Nelson, 27

of the state," includes tide lands and subCal. App. 39, 148 Pac. 819.

merged lands.-People v. Southern Pac. Co., "Municipal affairs.”—Loop Lumber Co. v. 172 Cal. 692, 158 Pac. 177. . Van Loben Sels, 173 Cal. 228, 159 Pac. 600; "To negotiate a lease" does not confer Scheafer v. Herman, 172 Cal. 338, 155 Pac. power to execute a lease.-Salter V. Ives, 1084.

171 Cal. 790, 155 Pac. 84. "Negotiate" has been construed to mean "To ratify" is to give sanction and valid“conversation in arranging the terms of a ity to something done without authority contract."-Salter v. Ives, 171 Cal. 790, 155 by one individual in behalf of another.Pac. 84.

Snook v. Page, 29 Cal. App. 246, 155 Pac. “Net profits.”—Fee v. McPhee, 31 Cal. App. 107. 295, 160 Pac. 397.

"Transfer.”—Scholle v. Finnell, 173 Cal. "Occupancy," as used in section 1006 of 372, 159 Pac. 1179. the Civil Code, means possession, actual “Unlawfully," sufficient in charge of possession as contradistinguished from con- wrongful act.-Matter of Application of structive possession.-Hart V. All Persons, Ahart, 172 Cal. 762, 159 Pac. 160. 26 Cal. App. 664, 148 Pac. 236.

"Vehicle."—Harris v. Johnson, 174 Cal. 55, Occupation" is synonymous with the ex

161 Pac. 1155. pression “subjection to the will and control"

"Warrant," need not be used to create an and with “possessio pendis," and signifies

express warranty.—Costs v. Hord, 29 Cal. actual possession."-Hart v. All Persons,

App. 115, 154 Pac. 491. 26 Cal. App. 664, 148 Pac. 236. •

"Wilfully," imports a design to do a spe"Option,” by common as well as legal

cific act.—Matter of Application of Ahart, understanding, is simply a contract by

172 Cal. 762, 159 Pac. 160. which the owner of property agrees with another that he shall have a right to buy at

$19. a fixed price within a certain time.—McKey v. Clark, 233 Fed. 928.

1. In general.-One to whom an architect "Other transportation companies.”—United

gives an estimate of cost may not reckRailroads v. Railroad Commission, 173 Cal.

lessly proceed to make contracts which may 801, 162 Pac. 391.

and probably would make the cost of con"Points.”—Bruschi v. Cooper, 30 Cal. App. struction far above that estimated, and then 682, 159 Pac. 728.

hold the architect responsible for the sur"Process," as used in Political Code, sec plus expenditure.—Benenato V. McDougall, tions 17, 4171 and 4319, defined.-In re Baker, 166 Cal. 405, Ann. Cas. 1915C 871, 49 L. R. A. 32 Cal. App. 320, 162 Pac. 922.

(N. S.) 1202, 137 Pac. 8. "Ratification," as used in $$ 2310 and 2312 2. Inference of notice absolute, when.-If of Civil Code, refers to the act of another it appears that the party has knowledge -Snook v. Page, 29 Cal. App. 246, 155 Pac. or information of such facts as are sufficient 107.

to put a prudent man upon inquiry and that "Ratification," sale by owner is not a.- he wholly neglects to make any inquiry, or, Snook v. Page, 29 Cal. App. 246, 155 Pac. 107. having begun it, fails to prosecute it in a

"Ratify" is a term properly applicable reasonable manner, the inference of actual only to contracts by a person acting or notice is necessary and absolute.-Hawke v.

California Realty & Const. Co., 28 Cal. App. 377, 152 Pac. 959.

Presumption rebuttable.-If a party obtains knowledge or information of facts tending to show the existence of a prior right in conflict with the interest which he is seeking to obtain, and which are sufficient to put a reasonably prudent man upon inquiry, then it may be a legitimate, and perhaps even a necessary, inference that he acquired the further information which constitutes actual notice; but this inference may be defeated by proper evidence. — Hawke v. California Realty & Const. Co., 28 Cal. App. 377, 152 Pac. 959.

8 33.

1. Purpose of statute.-Inasmuch as our supreme court in Hastings v. Dollarhide, 24 Cal. 208, in 1864, had decided that an infant could execute a promissory note by agent, it is obvious that the intention of the legislature intended to change that rule of law. It is to be presumed that in adopting the rule herein all its incidents as then established were adopted with it, so that such contracts could be absolutely disregarded, and no disa ffirmance was required.-Hakes Inv. Co. v. Lyons, 166 Cal. 557, 137 Pac. 911.


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$ 34.

House v. Fry, 30 Cal. App. 157, 12 N. C. C. A.

648n, 157 Pac. 500. 1. Contracts of minors.—It is the policy of the law to discourage adults from contracting with infants, and the former can 1. Infant bound by decree of court.-An not complain if, as a consequence of their infant can be bound without having his day violation of this rule of conduct, they are in court, and is as much bound as a person injured by the exercise of the right with

of full age by a decree in equity, the same which the law has purposely invested the

grounds being available to both for dislatter, nor charge that the infant in exer

puting it.- Estate of Lamb, 6 Cof. Prob. Dec. cising the right is guilty of fraud.-Flittner

432. v. Equitable Life Assur. Soc., 30 Cal. App. 209, 157 Pac. 630.

$ 43.


1. Arrest based on advice of magistrate. 1. Construction. — The provisions herein

2. Magistrate without jurisdiction to issue concerning disaffirmance by a minor under

warrant. 18 years are to be understood as referring solely to contracts other than those de

3, 4. Malicious prosecution. scribed in section 33; it is not, therefore, 1. Arrest based on advice of magistrate. necessary to disaffirm in order to avoid the -The defendant is not exonerated from liacontract of a minor under that age relating bility for the false imprisonment by the fact to real property, or to personal property

that, before filing his affidavit for the arrest, not in his immediate control, or delegating

the magistrate who issued the warrant, a power.-Hakes Iny. Co. v. Lyons, 166 Cal.

being informed of the facts, advised him 557, 137 Pac. 911.

that there was sufficient cause for the ar2. Disaffirmance of contract of life insur

rest.-Nelson v. Kellogg, 162 Cal. 621, 123 ance-A contract of life insurance entered Pac. 1115. into in this state by a minor under the age 2. Magistrate without jurisdiction to of eighteen years is subject to the laws

issue warrant.-The principle, that where of this state in the matter of his right to

the affidavit for arrest contains direct statedisa ffirm the contract and recover the pre

ment of facts which constitute some evimiums paid thereunder, and not subject to

dence of every fact which the statute rethe laws of the state under which the insur

quires to be shown therein, the magistrate ance company was organized and exists,

to whom it is presented has jurisdiction notwithstanding the policy provides that to pass upon its sufficiency, and if he deterthe payment of the benefit should be at the

mines upon such evidence that it is sufficient home office of the company and that the

and thereupon issues the warrant, the party premiums should also be paid at such place.

who invokes his decision is not answerable -Flittner v. Equitable Life Assur. Soc., 30

to the defendant in damages if the magisCal. App. 209. 157 Pac, 630.

trate errs in his judgment, is not applicable 3. A minor under the age of eighteen

to the arrest on civil process of a person years may disaffirm a contract without re

shown to be a female, since such arrest storing or offering to restore the considera

is not allowed on any state of facts and the tion.-Flittner v. Equitable Life Assur. Soc.,

magistrate can under no circumstances ac30 Cal. App. 209, 157 Pac. 630.

quire jurisdiction to issue the warrant.

Nelson v. Kellogg, 162 Cal. 621, 123 Pac. § 41.

1115. 1. Minor's liability for torts.-A minor is 3. Malicious prosecution. — In an action civilly liable for a wrong done by him.- for damages for malicious prosecution it is

incumbent upon the plaintiff to prove both malice and want of probable cause.--Lee v. Levinson, 173 Cal. 166, 159 Pac. 438.

4. Probable cause is a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.--Lee v, Levison, 173 Cal. 166, 159 Pac. 438.

$ 44.
1. Defamation by Ubel.-Where the lan-

thel_Where the lan.
guage used is not libelous per se, no innu-
endo or other allegation can make it
defamatory. — Pollock v. Evening Herald
Pub. Co., 28 Cal. App. 786, 154 Pac. 30.
$ 45.

LIBEL. 1. As to what constitutes. 2–6. Evidence.

7. --Burden of proof.

1. As to what constitutes.-It is libelous per se to falsely charge that a person is a

ery charge that a person is a hypocrite.-Newby V. Times-Mirror Co., 173 Cal. 387, 160 Pac. 233.

2. Evidence.-In an action for libel, a plaintiff comes into court with his general good character established by the statute, and evidence is not admissible in that issue until the character of the plaintiff has been impeached or put in issue by the waiver.Examiner Printing Co. v. Aston, 238 Fed. 459, 463.

3. Where in an action for libel there is a distinct issue raised by the pleadings as to

the plaintiff's professional character and as to the truth and veracity of his reports as an engineer, the plaintiff may, in his case in chief, introduce evidence that his reputation as an engineer was first-class.Examiner Printing Co. v. Aston, 238 Fed. 459.

4. Where in an action for libeling the plaintiff's reputation as an engineer the plaintiff claims he has been damaged by the publication, and the question of damages has been placed in issue by the answer, the plaintiff may introduce evidence that his reputation was first class.--Examiner Printing Co. v. Aston, 238 Fed. 459.

5. In an action for libel, the plaintiff may, by way of inducement as an explanatory introduction to the main allegations of the complaint, offer in evidence copies of other papers containing articles of the same general character.-Examiner Printing Co. v. Aston, 238 Fed. 459.

6. Where the words published are fairly capable of two meanings, one harmless and the other defamatory, it is a question for the jury to determine from the evidence in what sense the person who may have read the same may have understood them.-Bonestell v. Shaw, 28 Cal. App. 226, 151 Pac. 1149.

7. -Burden of proof.—The burden is on the defendant to prove the truth of the charges and no burden rests on the plaintiff to prove their falsity.-Adams v. Cameron, 27 Cal. App. 625, 150 Pac. 1005.





$ 55.

marriage and consent of guardian or parents 1. Marriage-Solemnization necessary to

is not necessary.-In re Ambrose, 170 Cal.

160, 149 Pac. 43. valid.--Inasmuch as solemnization has been

2. It is only when marriage is contracted made an essential to a valid marriage, a

by a minor incapable of giving consent by presumption of marriage from continued

reason of being under age that the consent cohabitation can no longer be indulged in

of the parents or guardian is essential to the the face of a showing that there was no

validity of the marriage.-Guardianship of solemnization.-Estate of Elliott, 165 Cal.

Ambrose, 170 Cal. 160, 149 Pac. 43. 339, 132 Pac. 439.

2. -Former spouse living, effect on va $ 61, lidity -A common-law marriage, as well as

SUBSEQUENT MARRIAGE, VALIDITY. one entered into under regular forms and ceremonies, does not create the relation of

1, 2. Amendment-of 1903, effect of. husband and wife between a man and a

3. --Of 1897—Constitutionality. woman already having a wife and a husband

4. Construction-To what cases applicable living and not divorced.-Estate of Dela

(subd. 2). porte, 6 Cof. Prob. Dec. 513.

1. Amendment — Of 1903, effect of. — By

the amendment of 1903 the prohibition upon § 56.

marriage within one year from the ren1. Marriage of minork-Consent of guar dition of a decree of divorce was taken dian or parent necessary, when.—A female from the section and a provision inserted over the age of fifteen years is capable of invalidating a marriage within a year after consenting to and consummating a valid the entry of an interlocutory decree of

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