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§ 1861.

CHAPTER II.

DEPOSIT FOR KEEPING.

ARTICLE IV.

INNKEEPERS.

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

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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 owners 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.

§ 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

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 residue 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.

§ 1917.

1.

History: Enactment approved June 1, 1917, Stats. and Amdts. 1917, p. 1662. In effect July 31, 1917.

Legal rate of interest.-As to effect of charging illegal interest, see post, Pen. C. pt., § 340.

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1. Time of payment of rent-Construction. Where the parties to a written lease which provided for the payment of the monthly rental in advance orally agreed at the termination of the lease that the lessee might remain a tenant "from month to month at the same rental," it was contemplated that the rent should be 'continued to be paid in advance, and not at the end of the month. Rosenbaum Estate Co. v. Robert Dollar Co., 31 Cal. App. 576, 161 Pac. 10.

2. Where the meaning of a contract is doubtful, the acts of the parties done under it afford one of the most reliable means of arriving at the intention of the parties.Rosenbaum Estate Co. v. Robert Dollar Co., 31 Cal. App. 576, 161 Pac. 10.

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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.

3. -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 a 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. 4.

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 inferior rank.— Gibson v. Kennedy Extension Gold Min. Co., 172 Cal. 294, 156 Pac. 56.

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.

7. 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.

§ 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.

§ 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 hundred 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.

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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.

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§ 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.

§ 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.

§ 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.

§ 2297.

1.

General agents.-The authority to complete contracts primarily differentiates a general agent having power to bind his principal from mere soliciting agents and other intermediaries operating between the insured and the insurer, who have authority only to initiate contracts, and consequently can not bind their principals by anything they may say or do during the preliminary negotiations.-Browne v. Commercial Union Assur. Co., 30 Cal. App. 547, 158 Pac. 765.

2. Presumptively, an agent is employed to make contracts, not to rescind or modify them; to acquire interests, not to give them

up, and no power to cancel or vary an agreement is to be inferred from a general power to make it, nor has the agent any implied power to waive or give up rights or interests of his principal, unless the principal knew or approved of such modifications by the agent. However, a general agent may act under such broad power to contract in his own name, or to make terms or to settle upon his own discretion, as to overcome this presumption and bind the principal by the modification, rescission, or release of his agent. Thomas v. Anthony, 30 Cal. App. 217, 157 Pac. 823.

3. A general agent, in the strict legal sense, is one who has all the powers of his principal as to the business in which he is engaged, and in the insurance business this term has reference to the geographical extent of the agent's authority, in contradistinction to a local agent, who may have original powers, though exercising them within more restricted limits.-Porter v. General Accident Fire & Life Assur. Corp., 30 Cal. App. 198, 157 Pac. 825.

§ 2298.

1. Actual or ostensible agency.-An agency is either actual or ostensible when the principal unintentionally or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.-Raleigh v. Lee, 26 Cal. App. 229, 146 Pac. 696.

As to ostensible agency, see, also, post, C. C. pt., § 2300.

As to ostensible authority of agent, see post, C. C. pt., § 2317.

2. Where the authority of an agent is unwritten, and express oral authority is not satisfactorily shown, such authority may be implied from acts and circumstances shown. -Spoon v. Sheldon, 27 Cal. App. 765, 151 Pac. 150.

$2300.

1. Ostensible agency.— -The application of the rule of ostensible agency or authority depends primarily upon the acts or conduct or words of the principal, and not upon the acts or conduct or words of the agent. The rule is that a principal will be bound by those acts of his agent which he has given other persons reason to suppose are done by his authority, but such authority arises by implication and can only spring from the words, acts, or conduct of the principal.Wiley B. Allen Co. v. Wood, 32 Cal. App. 76, 162 Pac. 121.

As to ostensible authority of agent, see post, C. C. pt., § 2317.

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3861

§ 2310.

1.

Ratification of agent's act-Construction. The word "ratification" as used in this section and in section 2312 undoubtedly refers to the act of another.-Snook v. Page, 29 Cal. App. 246, 155 Pac. 107.

2. "To ratify" is to give sanction and validity to something done without authority by one individual in behalf of another. In legal phrase, it usually means to approve or confirm by a principal what has been done by an agent or one assuming to act for another.-Snook v. Page, 29 Cal. App. 246, 155 Pac. 107.

3. The terms "adopt" and "ratify" are properly applicable only to contracts by a party acting or assuming to act for another. The latter may then adopt or ratify the act of the former, however, unauthorized. adoption or ratification there must be some relation, actual or assumed, of principal and agent. Snook v. Page, 29 Cal. App. 246, 155 Pac. 107.

§ 2315.

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authority.-The

1. Measure of agent's mere employment by the owner of an agent to sell or lease his real property is not sufficient, usually speaking, as a grant of power to execute a binding conveyance or lease.Salter v. Ives, 171 Cal. 790, 155 Pac. 84.

2. A written authorization "to negotiate a lease" does not by its terms confer upon the agent the power to execute a lease.-Salter v. Ives, 171 Cal. 790, 155 Pac. 84.

3. An insurance company, like any other principal, may limit the powers of its agents, and where this is done by clear and plain terms in the policy and the applicant accepts the policy, it becomes the contract between him and the company, and he is charged with knowledge of its terms, among others, the limitations upon the power of the agent of the company.-Porter v. General Accident Fire & Life Assur. Corp., 30 Cal. App. 198, 157 Pac. 825.

§ 2317.

1. Ostensible authority, what is.-Within the scope of his ostensible authority the agent represents the principal and all liabilities that would accrue to the agent within such limits accrue to the principal; and, as against the principal, both principal and agent are deemed to have notice of whatever either has notice of, and ought in good faith and the exercise of ordinary care and diligence to communicate to the other. A principal is bound by the acts of his agent, under a merely ostensible authority, to those persons who have in good faith, and without want of ordinary care, incurred a liability or parted with value upon the faith thereof.-Raleigh v. Lee, 26 Cal. App. 229, 146 Pac. 696.

2. A local manager of a piano company who in the sale of pianos had authority to accept second-hand pianos as in part payment of pianos sold, and who in making a sale accepted such a piano, does not imply

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