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$ 1861a. Liens of keepers of furnished apartment houses [new].

on

owners

1861. 1. Hotels and lodging-houses-Lien baggage, etc.—Under the circumstances of this case the mere fact that the word "apartment" appears as a portion of the designation of the premises is not sufficient to overcome the evidence in the case tending to show that the premises were in fact a lodging-house.-Fox V. Windemere Hotel Apartment Co., 30 Cal. App. 162, 157 Pac. 820.

2. A lodging-house is none the less such because it contains furnished apartments that are let out by the week or month. Where the evidence shows that the house was under the direct control and supervision of the owners, that the rooms were fur

nished and attended to by them, and that they or their servants retained the keys thereto, a person renting such a room makes himself a lodger and not a tenant, and the

are lodging-house keepers within the meaning of this section.--Fox v. Windemere Hotel Apartment Co., 30 Cal. App. 162, 157 Pac. 820.

3. In an action of claim and delivery to recover a trunk and contents on which the defendant claims to have a lien under this section to secure the unpaid rent, whether or not a legal tender was made to the defendant of the amount due was a material issue upon which a finding should be made.Fox v. Windemere Hotel Apartment Co., 30 Cal. App. 162, 157 Pac. 820.

8 1861a. LIENS OF KEEPERS OF FURNISHED APARTMENT HOUSES. Keepers of furnished apartment houses shall have a lien upon the baggage and other property of value belonging to their tenants or guests, which may be in such furnished apartment house, for the proper charges due from such tenants or guests, for their accommodation, rent, services, meals, and such extras as are furnished at their request, and for all moneys expended for them, at their request, and for the costs of enforcing such lien, with the right to the possession of such baggage and other property of value until such charges are paid, and such moneys are repaid; and unless such charges shall be paid and unless such moneys shall be repaid within sixty days from the time when such charges and moneys, respectively, become due, said keeper of a furnished apartment house may sell said baggage and property, at public auction to the highest bidder, after giving notice of such sale by publication of a notice containing the name of the debtor, the amount due, a brief description of the property to be sold, and the time and place of such sale, once every week, for four successive weeks, prior to the date of sale, in a newspaper of general circulation in the county

are

in which said furnished apartment house is situated, and also by mailing, at least fifteen days prior to the date of sale, a copy of such notice addressed to such tenant or guest at his post-office address, if known, and if not known, such notice shall be addressed to such tenant or guest at the place where such furnished apartment house is situated; and, after satisfying such lien out of the proceeds of such sale, together with any reasonable costs that may have been incurred in enforcing said lien, the resi. due of said proceeds of sale, if any, shall, upon demand made within six months after such sale, be paid by said keeper of a furnished apartment house to such tenant or guest; and if not demanded within six months from the date of such sale, said residue, if any, shall be paid into the treasury of the county in which such sale took place; and if the same be not claimed by the owner thereof, or his legal representative, within one year thereafter, it shall be paid into the general fund of the county; and such sale shall be a perpetual bar to any action against said keeper of a furnished apartment house for the recovery of such baggage or property, or of the value thereof, or for any damages growing out of the failure of such tenant or guest to receive such baggage or property.

History: Enactment approved June 1, 1917, Stats, and Amdts. 1917,

p. 1662. In effect July 31, 1917. 8 1917.

-Where provisions ot section

walved.-Where the provisions of this sec1. Legal rate of interest.-As to effect of

tion are expressly waived in the lease, the charging illegal interest, see post, Pen. C.

tenant can not be credited with the amount pt., $ 340.

of repairs made by him even to the extent

of one month's rent. -Arnold v. Krigbaum, § 1920.

169 Cal. 143, Ann. Cas. 1916D 370, 146 Pac. 1. Interest on judgment.-Interest at the

423. rate provided herein can not be allowed on a claim against an estate where the claim 8 1947. was based on a promissory note bearing six

1. Time of payment of rent-Construcper cent interest.-Estate of Bell, 168 Cal.

tion.-Where the parties to a written lease 253, 141 Pac. 1179.

which provided for the payment of the 2. A judgment bears interest by force of

monthly rental in advance orally agreed at the law and not by reason of any declara

the termination of the lease that the lessee tion it may contain to that effect.-Glenn v.

might remain a tenant "from month to month Rice, 174 Cal. — 162 Pac. 1020.

at the same rental," it was contemplated

that the rent should be continued to be paid § 1928.

in advance, and not at the end of the month. 1. Ballment of hiring-Degree of care re- Rosenbaum Estate Co. v. Robert Dollar Co.,' quired.-An agreement to return a thing in

31 Cal. App. 576, 161 Pac. 10. good condition less wear and tear is merely

2. Where the meaning of a contract is what the law would have implied in its ab

doubtful, the acts of the parties done under A bailee does not increase his lia

it afford one of the most reliable means of bility to that of an absolute insurer merely

arriving at the intention of the parties.by expressing in his agreement what the

Rosenbaum Estate Co. v. Robert Dollar Co., law implies.-J. M. Brown, Inc., v. W. P.

31 Cal. App. 576, 161 Pac. 10. Fuller & Co., 28 Cal. App. 676, 153 Pac. 960.

§ 1948. $ 1929.

1. Attornment to stranger.--The attorn1. Bailment of hiring-Hirer not insurer.

ment of a tenant to a stranger is void when -Where nothing more appears than a mere

made without the knowledge of the landpromise to return the thing hired in good

lord.—Cheda v. Bodkin, 173 Cal. 7, 158 Pac. condition less wear and tear, it does not

1025. import a contract on the part of the hirer to insure it against inevitable casualties or

8 1970. losses occurring without fault on his part.

INDEMNIFICATION OF EMPLOYEE. J. M. Brown, Inc., v. W. P. Fuller & Co., 28 Cal. App. 676, 153 Pac. 960.

1, 2. Construction of section.

3. 4. -Amendment of 1907. § 1942.

5. "Dependent," who is a.

6. Evidence, admissibility of. 1. Leased premises--Notice to repair nec

7. What risks assumed. essary.-A tenant is not warranted in removing from demised premises under the 1. Construction of section. This section provisions of this and section 1941 where providing that the personal representatives no definite notice to repair is given.-Rosen- shall have the right of action against the baum Estate Co. v. Robert Dollar Co., 31 employer and may recover damages on beCal. App. 576, 161 Pac. 10.

half of the widow, children, and other enu4. The amendment of 1907 to this section has no application to the case of an employee of superior rank, who is injured by the alleged neglect of one of interior rank.Gibson v. Kennedy Extension Gold Min. Co., 172 Cal. 294, 156 Pac. 56.

sence.

$ 1985.

1. List of laundry customers property of employer.-A laundry driver whose duty it was to serve customers, solicit new business, and keep a complete list of customers holds an agency of trust and confidence, so that a complete and confidential list of all customers even though in part prepared by the driver is the absolute property of his employer.--Empire Steam Laundry Co. v. Lozier, 165 Cal. 95, Ann. Cas. 1914C 628, 44 L. R. A. (N. S.) 1159, 130 Pac. 1180.

8 1997.

1. Construction of employment contract.A contract between a gas company and an individual wherein the former agreed to pay the latter the sum of three thousand dollars per year, in instalments of two hu:dred and fifty dollars per month "for the term of five years," and to pay, "in addition thereto," six per cent of the net profits on a sale of the property of the gas company should such a sale be made within the five years, and in the event that no sale was made within that time, six per cent of the actual profits of the concern at the end of the five years, in consideration of which the latter agreed “to devote his time, attention, and ability to the management of the property mentioned by using every effort in his power to make it successful," is not ipso facto terminated, in so far as the latter's rights to the payment of two hundred and fifty dollars per month is concerned, by a sale of the property within the five years.W. F. Boardman Co. v. Petch, 174 Cal. —, 162 Pac. 1028.

merated relatives does not abrogate section 377 of the Code of Civil Procedure. This section must be construed with section 377 of the Code of Civil Procedure and not as superseding it. So construed it means that where this section has created rights of action growing out of the relationship of employer and employee, which right of action did not formerly exist, such rights of action by the representative of an employee who has lost his life, may be prosecuted for the benefit of the class limited and designated in this section. So construed there is no conflict between the two sections.-Gonsalves v. Petaluma & S. R. Co., 173 Cal. 264, 159 Pac. 724.

2. A cause of action founded upon the employer's neglect in furnishing the employee a safe place in which to work is not one under this section but under section 377 of the Code of Civil Procedure.-Gonsalves v. Petaluma & S. R. Co., 173 Cal. 264, 159 Pac. 724.

Amendment of 1907.-The amendment of 1907 was intended to change the former definition of fellow-servants and to limit that definition to a smaller class. Under the old rule a foreman in charge of others was classed as fellow-servant. Now, the master is liable for the neglect of a foreman or other person in charge or control of the men that work with him for damages caused by his negligence in the performance of his superior duties even if they are not duties which the master by law owes to the inferior servant.-Foutz v. City of Los Angeles, 167 Cal. 487, 140 Pac, 20.

5. “Dependent," who is a.-The word "dependent," as used in section 1970 of the Civil Code, giving a right of action to parents for the death of an employee, is intended to describe a condition of actual dependency, not a dependency that rests on a presumption on account of relationship.--Balaklala Consol. Copper Co. v. Reardon, 220 Fed, 584.

6. Evidence, admissibility of.-In an action under section 1970 of the Civil Code, brought by an administrator for the benefit of the parents of a deceased employee, testimony that the parents were very poor and that the decedent had contributed to their support since he was big enough to work for wages is admissible.--Balaklala Consol. Copper Co. v. Reardon, 220 Fed. 584.

What risks assumed.-A servant assumes the ordinary risks of the business upon which he enters, so far as those risks at the time of his entering upon the business are known to him or should be readily discernible by one of his age and capacity. He does not assume any

risks not thus known or discernible.-Arthur v. Merchants Ice & Cold Storage Co., 173 Cal. 646, 161 Pac. 121.

a

8 2009.

1. Servant, who is-Construction.—Where the master has the right of control it is not necessary that he actually exercise such control.-Tucker v. Cooper, 172 Cal. 663, 158 Pac. 181.

§ 2019.

1. Agents-Authority of broker.-A writing authorizing a real estate broker to sell for the owner at the price and on the terms mentioned certain real property, and to receive and receipt for any deposit made on the purchase price thereof, does not authorize the broker to enter into a contract of sale on behalf of the owner, and a contract entered into pursuant to such authorization can not be specifically enforced.—Thompson v. Scholl, 32 Cal. App. 4, 161 Pac. 1006.

$ 2096.

1. Care required in carriage of persons.The applicability of such rule of responsibility is not changed, in the case of an elevator operated in a department store, by reason of section 2096 of the Civil Code, which provides that “a carrier of persons without reward must use ordinary care and diligence for their safe carriage,” since such elevator service is not "without reward," but

the reward is the benefit, advantage, and profit in trade derived from purchasers using the elevator.-Champagne v. Hamburger, 169 Cal. 683, 147 Pac. 954.

$ 2102. 1.

Vehicles-Construction.-Under section 510, ante, this section also governs the duty of street railroad companies.-Kelly v. Santa Barbara Consol. R. Co., 171 Cal. 415, 153 Pac. 903.

$ 2176.

1. Contract of common carrier-Construction.-The knowledge of the limitation which will bring the case within the terms of this section may

be constructive as well as actual. The mere taking and retention by the consignor of a paper containing such terms of limitation of liability does not of itself amount to an assent because this section expressly declares it shall not.-Curtis v. United Transf. Co., 167 Cal. 112, 8 N. C. C. A. 131n, 138 Pac, 726.

§ 2235.

1. Transactions between trustee and beneficiary-Presumptions.-Under section 2235 of the Civil Code the presumption in regard to transactions between a trustee and beneficiary is, not only that undue influence was exercised, but that there was no sufficient consideration. This does not mean that a total want of consideration is presumed.— Metropolis Trust & Sav. Bank v. Monnier, 169 Cal. 592, 147 Pac. 265.

2. This does not mean that a trustee may not deal with his beneficiary, but only that, where he does so in such a manner as to obtain an advantage the trustee has the burden of showing by evidence that the transaction was fair. The obtaining of a note for twenty thousand dollars secured by mortgage is an advantage, and in an action to foreclose such mortgage he must produce affirmative proof of the facts surrounding the mortgage. The presumption raised is that there is no sufficient consideration and not that there is a total want of consideration.-Metropolis Trust & Sav. Bank v. Monnier, 169 Cal. 592, 147 Pac. 265.

§ 2184.

1. Obligation to provide vehicles-Construction.--Under section 510, ante, this section also governs the duty of street railroad companies.-Kelly v. Santa Barbara Consol. R. Co., 171 Cal. 415, 153 Pac. 903.

8 2274

1. Compensation of trustee.-A trustee is entitled to a reasonable compensation for his services as they are rendered, and unless a contrary intention appears, the compensation must come out of the income of the fund in the administration of which it is earned.-In re Woods, 6 Cof. Prob. Dec. 451.

8 2217.

1. Trust by operation of law.-An express trust must be in writing, but this rule does not preclude a trust arising by operation of law enforceable by the parties for whose benefit the conveyance has been made.Bier v. Leisle, 172 Cal. 432, 156 Pac. 870.

§ 2221.

1. Voluntary trusts-Creation of.-A voluntary trust for the benefit of a partnership is created where the wife of one of the partners accepts a deed to property purchased by the firm with the knowledge that the conveyance to her is for the benefit of the partnership.-Arnold v. Loomis, 170 Cal. 95, 148 Pac. 518.

2. An express trust should define its subject, purpose, and beneficiary, and also its duration in regard to time.-Estate of Lamb, 6 Cof. Prob. Dec. 432.

§ 2280.

REVOCATION OF TRUST.
1. Construction of section.
2. Jurisdiction of court.

1. Construction of section.-This section applies to trust estates only, while sections 1229 and 1230 apply generally to all estates. This section is certainly a recognition of the right of the grantor to reserve in his deed or declaration of trust the power of revocation.-Tennant v. John Tennant Memorial Home, 167 Cal. 570, 140 Pac. 242.

2. Jurisdiction of court.-In order to give a court in equity jurisdiction to terminate the trust all the parties in interest must be before the court.-Gray v. Union Trust Co., 171 Cal. 637, 154 Pac, 306.

82224.

$ 2297

1. General agents.—The authority to com1. Involuntary trust resulting from fraud,

plete contracts primarily differentiates a mistake, etc.-Equity will enforce such a trust even when it rests in parol.-Lamb v.

general agent having power to bind his

principal from mere soliciting agents and Lamb, 171 Cal. 577, 153 Pac. 913.

other intermediaries operating between the

insured and the insurer, who have authority 8 2230.

only to initiate contracts, and consequently 1. Transactions forbidden-Construction. can not bind their principals by anything --Directors of a corporation are trustees and they may say or do during the preliminary subject to the requirements and obligations negotiations.-Browne v. Commercial Union of persons occupying that relation as de- Assur. Co., 30 Cal. App. 547, 158 Pac. 765. fined in this and the following sections.

2. Presumptively, an agent is employed Highland Park Inv. Co. v, List, 27 Cal. App. to make contracts, not to rescind or modify 761, 151 Pac. 162.

them; to acquire interests, not to give them to execute a binding conveyance or lease.nary care, causes a third person to believe

up, and no power to cancel or vary an agree

§ 2310. nient is to be inferred from a general power

1. to make it, nor has the agent any implied

Ratification of agent's act-Construc

tion.-The word "ratification" as used in this power to waive or give up rights or inter

section and in section 2312 undoubtedly reests of his principal, unless the principal

fers to the act of another.-Snook v. Page, knew or approved of such modifications by

29 Cal. App. 246, 155 the agent. However, a general agent may

Pac. 107.

2. "To ratify" is to give sanction and act under such broad power to contract in his own name, or to make terms or to settle

validity to something done without author

ity by one individual in behalf of another. upon his own discretion, as to overcome this

In legal phrase, it usually means to approve presumption and bind the principal by the

or confirm by a principal what has been modification, rescission, or release of his

done by an agent or one assuming to act agent.—Thomas v. Anthony, 30 Cal. App. 217,

for another.-Snook v. Page, 29 Cal. App. 157 Pac. 823.

246, 155 Pac. 107. 3. A general agent, in the strict legal

3. The terms "adopt” and “ratify" are sense, is one who has all the powers of his

properly applicable only to contracts by a principal as to the business in which he is

party acting or assuming to act for another. engaged, and in the insurance business this

The latter na then adopt or ratify the ac term has reference to the geographical ex

of the former, however, unauthorized. To tent of the agent's authority, in contradis

adoption or ratification there must be some tinction to a local agent, who may have

relation, actual or assumed, of principal and original powers, though exercising them

agent.-Snook v. Page, 29 Cal. App. 246, 155 within more restricted limits.-Porter V.

Pac. 107. General Accident Fire & Life Assur. Corp., 30 Cal. App. 198, 157 Pac. 825.

§ 2315.

1. Measure of 8 2298.

agent's authority.The

mere employment by the owner of an agent 1. Actual or ostensible agency.-An agency

to sell or lease his real property is not suffiis either actual or ostensible when the prin

cient, usually speaking, as a grant of power cipal unintentionally or by want of ordi

Salter v. Ives, 171 Cal. 790, 155 Pac. 84. another to be his agent who is not really

2. A written authorization "to negotiate a employed by him.-Raleigh v. Lee, 26 Cal.

lease" does not by its terms confer upon the App. 229, 146 Pac. 696.

agent the power to execute a lease.--Salter As to ostensible agency, see, also, post,

v. Ives, 171 Cal. 790, 155 Pac. 84. C. C. pt., $ 2300.

3. An insurance company, like any other As to ostensible authority of agent, see principal, may limit the powers of its agents, post, C. C. pt., $ 2317.

and where this is done by clear and plain 2. Where the authority of an agent is un- terms in the policy and the applicant acwritten, and express oral authority is not

cepts the policy, it becomes the contract besatisfactorily shown, such authority may be

tween him and the

company, and he is implied from acts and circumstances shown. charged with knowledge of its terms, among -Spoon v. Sheldon, 27 Cal. App. 765, 151 Pac.

others, the limitations upon the power of 150.

the agent of the company.-Porter v. Gen

eral Accident Fire & Life Assur. Corp., 30 $ 2300.

Cal. App. 198, 157 Pac. 825. 1. Ostensible agency. The application of the rule of ostensible agency or authority $ 2317. depends primarily upon the acts or conduct

1. Ostensible authority, what is. Within or words of the principal, and not upon the

the scope of his ostensible authority the acts or conduct or words of the agent. The

agent represents the principal and all liarule is that a principal will be bound by bilities that would accrue to the agent within those acts of his agent which he has given

such limits accrue to the principal; and, as other persons reason to suppose are done by

against the principal, both principal and his authority, but such authority arises by

agent are deemed to have notice of whatimplication and can only spring from the

ever either has notice of, and ought in words, acts, or conduct of the principal.

good faith and the exercise of ordinary care Wiley B. Allen Co. v. Wood, 32 Cal. App. 76,

and diligence to communicate to the other. 162 Pac. 121.

A principal is bound by the acts of his As to ostensible authority of agent, see

agent, under a merely ostensible authority, post, C. C. pt., $ 2317.

to those persons who have in good faith,

and without want of ordinary care, incurred § 2309.

a liability or parted with value upon the 1. Form of authority-Construction.-Sec- faith thereof.-Raleigh v. Lee, 26 Cal. App. tion 2309 of the Civil Code, requiring an 229, 146 Pac. 696. agent's authority to execute a contract in 2. A local manager of a piano company writing to be itself in writing, does not who in the sale of pianos had authority to apply to the executive officers of a corpora- accept second-hand pianos as in part paytion.--McCartney v. Clover Valley Land & ment of pianos sold, and who in making a Stock Co., 232 Fed. 697.

sale accepted such a piano, does not imply

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