that he has ostensible authority to cancel or satisfy the purchaser's indebtedness to the company by assuming, for a consideration entirely personal to himself, personal liability for such indebtedness.-Wiley B. Allen Co. v. Wood, 32 Cal. App. 76, 162 Pac. 121.

§ 2319.

1.

What agent can not do.-A local manager of a piano company who is authorized to receive money for it from its patrons and execute and deliver receipts therefor in the company's name does not have implied authority to make settlements with debtors of the company on a basis different from that prescribed by the company's contracts with its debtors, or to deliver receipts for money in the company's name when none is actually paid.-Wiley B. Allen Co. v. Wood, 32 Cal. App. 76, 162 Pac. 121.

§ 2330.

1.

Acts of agent-Scope of authority.— An agent of the pledgor of corporate stock is liable to his principal for damages resulting from the sale of the stock by such agent in a wrongful and negligent manner.-Lem v. Wilson, 27 Cal. App. 512, 150 Pac. 641.

2. An agent may not, as such, make a secret profit out of a transaction wherein he represents his principal.-Teats v. Caldwell, 28 Cal. App. 206, 151 Pac. 973.

3. The fact that an agent is acting gratuitously does not justify him in making a secret profit out of a transaction in which he represents his principal.-Teats v. Caldwell, 28 Cal. App. 206, 151 Pac. 973.

§ 2332.

1. Notice to agent bucks."-"Stable Where it appears, in an action to recover for personal injuries sustained by the plaintiff while driving a team furnished him by the defendant, that the defendant kept in charge of its stables no responsible person and no person at all other than "stable bucks," whose authority was limited simply to the feeding of the animals and at times to hooking them up, such "stable bucks" were sufficiently in charge to warrant the lodging of complaints with them as representatives of their employer, and knowledge of the complaints thus lodged were imputable to such employer.-Barrett v. Metropolitan Contracting Co., 172 Cal. 116, 155 Pac. 645.

2. -Notice to husband. Where there was no evidence that the husband was the wife's agent or authorized by her to borrow money upon the security of the wife's property, except the declarations of the husband, which were incompetent, notice of the transaction can not be imputed to the wife under section 2332 of the Civil Code; nor can such an agreement be upheld as an executed agreement binding the wife, the husband not having had any authority, actual or ostensible, to make the agreement, and it not appearing that he was the general agent of the wife. Raleigh v. Lee, 26 Cal. App. 229, 146 Pac. 696.

§ 2395.

1.

Partnership, what is a.-A partnership for the purpose of dealing in real estate and dividing the profits may be formed by oral agreement and its continuation proved by parol evidence.-Arnold v. Loomis, 170 Cal. 95, 148 Pac. 518.

2. It is not of the essence of a partnership that the parties to it should have known that their contract in law created a partnership; if by contract or by conduct or by both they have in point of law engaged in a partnership venture, so far as third persons are concerned they can not be heard to deny the relationship and the liabilities arising therefrom.-Westcott v. Gilman, 170 Cal. 562, Ann. Cas. 1916E 437, 150 Pac. 777.

3. A partnership may be organized for the prosecution of one or two adventures, as well as for the conduct of a general and continuous business.-Westcott v. Gilman, 170 Cal. 562, Ann. Cas. 1916E 437, 150 Pac. 777.

4. An agreement for engaging in a certain building venture wherein the skill and labor of the one were to be combined with the capital of the other with an equal division of the profits and losses satisfies the code definition of a partnership.-Lanpher v. Warshauer, 28 Cal. App. 457, 152 Pac. 933.

1. Good faith between partners.-Where in an action for the dissolution of a partnership and for an accounting it is found that the defendant was induced to enter into the partnership agreement solely by reason of the fraudulent representations of the plaintiff, the latter is not entitled to any relief.— Miller v. Kraus, 51 Cal. Dec. 154, 155 Pac. 834.

2. Partnership contracts create a fiduciary relation between the partners, and they must be founded in good faith and upon the consent of the parties for a lawful purpose; where one of the parties to an agreement of partnership has been induced to enter into it by the fraudulent representations of the other, the partnership may be declared void and dissolved, or, what in effect amounts to the same thing, the agreement of partnership rescinded.-Miller Kraus, 51 Cal. Dec. 154, 155 Pac. 834.

V.

3. Where one who has been induced to enter into a partnership agreement by fraud elects to avoid the contract, the situation becomes, as between the partners, as though no partnership ever existed, although the defrauded partner, if he has held himself out

ch.II,arts.I-VII.]

as an apparent member of the firm, may be liable to creditors of the partnership.-Miller v. Kraus, 51 Cal. Dec. 154, 155 Pac. 834.

§ 2412.

1. when. The right of the partner who was to contribute his skill and labor to the building venture to come into a court of equity and have an accounting and settlement of the partnership affairs, is not lost by reason of the fact that he abandoned the work before its completion.-Lanpher v. Warshauer, 28 Cal. App. 457, 152 Pac. 933.

Liability to account-Right not lost,

§ 2442.

LIABILITY OF PARTNERSHIP TO THIRD PERSONS.

1. Liability of copartners.

2. Liability of members of unincorporated association.

3. Liability of retiring partner.

1. Liability of copartners.-A copartner, while his obligation is joint, is still liable to a creditor for the entire amount of the debt.-Brazil v. Azevedo, 32 Cal. App. 364, 162 Pac. 1049.

2. Liability of members of unincorporated associations.-While as between the members of an unincorporated association each is bound to pay only his numerical proportion of the indebtedness of the concern, yet as against the creditors, each member is individually liable for the entire debt provided, of course, the debt is of such a nature and has been so contracted as to be binding on the association as a whole, An unincorporated association organized for business or profit is in legal effect a mere partnership so far as the liability of its members to third persons is concerned; and accordingly, each member is individually liable as a partner for a debt contracted by the association.-Webster v. San Joaquin Fruit and Vegetable Growers' Protective Assn., 32 Cal. App. 264, 162 Pac. 654.

ship assets be applied to the payment of the partnership debts.-Rapple v. Dutton, 226 Fed. 430.

§ 2458.

1.

Powers of partners after dissolution. Upon the dissolution of a partnership each member thereof, in the absence of an agreement to the contrary, has the same right and authority to collect, compound, and release the debts of the firm existing at the time of the dissolution; such members, however, may by agreement restrict such right and commit the liquidation of its affairs, or any part thereof, to one or more members.Hill v. Maryland Casualty Co., 28 Cal. App. 422, 152 Pac. 953.

§ 2466.

1.

Fictitious partnership name—Construction. A firm name of "Abrams Bros." is not a designation "showing the names of the persons interested as partners" within the meaning of this section.-North v. Moore, 135 Cal. 621, 67 Pac. 1037.

2. The identity of the partners is not shown in the designation "P. H. Murphy and Son."-Schwartz v. Marcuse, 22 Cal. App. Dec. 1063.

3. The statute not only requires that the names of the persons comprising the fictitious partnership must be stated but truthfully stated. One can not be permitted to do business under a fictitious hame and be protected by a certificate that falsely represents the names of the partners to be some other persons. The very object of the statute would be thwarted if such evasion were countenanced.-Schwartz v. Marcuse, 22 Cal. App. Dec. 1063.

4.

-Certificate setting forth initials only. -A certificate of copartnership which sets forth the initials of the respective partners' given names instead of their names in full is sufficient when the partners are generally known by the names as thus given.-Hill v. Nerle, 29 Cal. App. 473, 156 Pac. 981,

name

2. The word "maintain" as used in section 2468 of the Civil Code providing that "no person doing business under a fictitious his assignee, . shall maintain an action," etc., means to commence, institute, begin, or bring.-Creditors' Adjustment Co. v. Rossi, 26 Cal. App. 725, 148 Pac. 528.

3. It is not a case where the fact that the plaintiff is engaged in business under a fictitious name appears on the face of the complaint, where the complaint affirmatively shows that the business in which the plaintiff is engaged is that of publisher of a

newspaper known as the San Francisco Call, and that the plaintiff is engaged in conducting the business of publishing said newspaper under the name of his agent W. W. Chapin, who is the ostensible publisher. The particular transaction on which the contract is based, which is set forth in full in the complaint, shows on its face that W. W. Chapin is the publisher of said newspaper. It is not contended that the name W. W. Chapin is fictitious.-Spreckels v. Grace Darling Hospital Assn., 28 Cal. App. 646, 153 Pac. 718.

4. -Raising question of capacity to sue.— The question as to plaintiff's want of legal capacity to sue may be raised by special demurrer on that ground, when the fact that he is doing business under a fictitious name within the meaning of section 2466 and this section appears upon the face of the complaint. Spreckels v. Grace Darling Hospital Assn., 28 Cal. App. 646, 153 Pac. 718.

§ 2512.

1. Mining partnership — Express agreement not necessary.—A mining partnership is not created by an agreement between persons who combine to acquire, develop, and deal in mines, unless the agreement contemplates the actual joint working of the mines by the parties upon the acquisition and development of the property.-Peterson v. Beggs, 26 Cal. App. 760, 148 Pac. 541.

2. It is essential to the existence of a mining partnership that the parties actually work the mine together for their mutual benefit, the parties to contribute to the expenses of the work and to share in the profits according to their respective interests.-Peterson v. Beggs, 26 Cal. App. 760, 148 Pac. 541.

3. An agreement between attorney and client that the former is to sell mining properties of which he holds the title in trust for both, and from the purchase price from time to time deduct a sum sufficient to repay to him all sums paid out for the benefit of the properties and to compensate him for his legal services, and that after such repayment and the payment of the expenses of the sales, the sums remaining are to be divided equally between the parties, and any remaining property held as joint owners, does not constitute them mining partners, and the attorney is not liable for the services of a watchman or keeper employed by the client.-Peterson v. Beggs, 26 Cal. App. 760, 148 Pac. 541.

4. Cotenants of a mine are not necessarily mining partners, or partners at all; the partnership arises only when the coowners unite and co-operate in working the mine.-Peterson v. Beggs, 26 Cal. App. 760, 148 Pac. 541.

§ 2581.

1.

For a proinsurance that of a

Material misrepresentation. fessional gambler to allow an agent to state his business as "capitalist" is to make a material misrepresentation.-Elliott v. Frankfort Marine etc. Ins. Co., 172 Cal. 261, L. R. A. 1916F 1026, 156 Pac. 481.

2. It is also a material misrepresentation for an applicant for insurance to state that he is of good habits, when he is living with a woman who is not his wife.-Elliott v. Frankfort Marine etc. Ins. Co., 172 Cal. 261, L. R. A. 1916F 1026, 156 Pac. 481.

§ 2586.

1. Insurance-Construction of policy.—A building is not vacant or unoccupied within the meaning of a clause in a policy of fire insurance providing that the company will not be liable for loss or damage occurring while the building is vacant or unoccupied beyond the period of ten consecutive days, where at the time of the fire the tenant who had occupied the premises for a year as a dwelling for himself and his family had vacated the possession of the premises, but had not removed all of his household effects therefrom, or surrendered possession to the

landlord.-Covey v. National Union Fire Ins. Co., 31 Cal. App. 579, 161 Pac. 35.

2. Service of notice of disagreement or demand for appraisement within the time required by a policy of fire insurance, providing that the company "shall be deemed to have waived assent to the amount of the loss claimed by the insured in his preliminary proof of loss, unless within twenty the days after receipt thereof

company shall notify the insured in writing," etc., is not made where given by letter mailed on the twentieth day after receipt of proof of loss to the insured residing at a different place and received by him two days after mailing.-Covey v. National Union Fire Ins. Co., 31 Cal. App. 579, 161 Pac. 35.

3. Service of demand for an appraisement of loss within the time required by a policy of fire insurance, providing that "if for any reason not attributable to the insured or to the appraiser appointed by him, an appraisement is not had and completed within ninety days after said preliminary proof of loss is received by this company, the insured is not to be prejudiced by the failure to make an appraisement and may prove the amount of his loss in an action brought without such appraisement," is not made, where given by letter mailed before the expiration of the ninety day period, but not received until

total loss under a policy of marine insurance it is not necessary that there should be an actual abandonment, it being sufficient if the right to abandon exists. — - Victoria S. S. Co. v. Western Assur. Co., 167 Cal. 348, 139 Pac. 807.

§ 2717.

1.

Maritime insurance-When freightage may be abandoned (subd. 4).—Where there is an actual total loss and destruction of the ship and an actual abandonment, no constructive abandonment is necessary as to the ship. Hence freightage may be constructively abandoned notwithstanding the provision of the last sentence of subd. 4, that "freightage can not in any case be abandoned, unless the ship is also abandoned."— Victoria S. S. Co. v. Western Assur. Co., 167 Cal. 348, 139 Pac. 807.

MENT.

§ 2778.

1. Indemnity insurance-Construction of section (subds. 5 and 6).-These two subdivisions merely declare rules of evidence under which a judgment recovered against the indemnitee may become prima facie or conclusive evidence of liability in his action against the indemnitor.-Eva v. Andersen, 166 Cal. 420, 137 Pac. 16.

2. -Pleading and proof (subd. 4).-In an action to enforce a contract of indemnity it is not necessary to allege that suit has been brought against the indemnitee and an opportunity given the indemnitor to defend it. The notice to be given to the indemnitor is not compulsory. The failure to give notice to the indemnitor does not go to the right of action against him, but simply changes the burden of proof and imposes upon the indemnitee the necessity of again litigating and establishing all the actionable facts.Eva v. Andersen, 166 Cal. 420, 137 Pac. 16.

§ 2793.

1. Guaranty-Sufficiency of.-A guaranty is not defective because the names of the guarantors do not appear in the body of the instrument, where the name of the guarantee is contained therein and the names of the guarantors are subscribed at the bottom, and

referred to in the body as "the undersigned." -Union Trust Co. v. Dickinson, 30 Cal. App. 91, 157 Pac. 615.

§ 2806.

1.

Guaranty-How construed.—A contract guaranteeing an account to a stated amount "provided the amount may be due and presented" to the guarantor by a specified date, is a conditional one dependent upon presentation and demand being made within the time limited in the proviso, and when the demand is not made until after the time specified no liability accrues upon the contract. Schwab v. Bridge, 27 Cal. App. 204, 149 Pac. 603.

2. A guaranty for the payment of rent reserved under the terms of a lease of real property for a period of ten years at a monthly rental of six hundred dollars for the first five years and seven hundred dollars for the remaining five years, which provides for the indemnification of the lessors "in the sum of three thousand six hundred dollars, being for six months' rent at six hundred dollars per month," obligates the guarantor only in the payment of the rent reserved for six months during the first five years of the lease not to exceed the sum of three thousand six hundred dollars at six

hundred dollars per month, and does not cover any default of the lessees in payment of the rent without regard to whether such default occurred during the first five years, when the rent was fixed at six hundred dollars per month, or during the second five years, when the rent was fixed at seven hundred dollars per month.-Rosenthal v. Bauer, 30 Cal. App. 277, 157 Pac. 1137.

§ 2807.

1. Liability extinguished when.-The execution by the school trustees in addition to such indorsement of a guaranty that the specified sum of money should be repaid to the assignee upon the completion of the school building "out of the twenty-five per cent of the contract price of said building, held back until the completion of said building," does not make them guarantors of the original obligation, and upon the abandonment of the contract by the contractor their liability is extinguished.-Lynip v. Alturas School District, 29 Cal. App. 158, 155 Pac. 109.

2. An assignment by a contractor, engaged in constructing a school building, of a specified sum of money "out of the twentyfive per cent of said contract price to be paid to me under said contract after the completion and acceptance of the building," operates solely upon the fund to become due and payable only upon the completion of the building, not upon moneys becoming due and payable as the work progresses; and if the contractor abandons the contract before completion, the school trustees are not liable to the assignee for the amount of the assignment, under their indorsement thereon recognizing the assignment and reciting an agreement to pay the sum named "out of the payment" to be made "at the time of completion and acceptance of said building." -Lynip v. Alturas School District, 29 Cal. App. 158, 155 Pac. 109.

The

3. Right to recover, when lost. right to recover on a guaranty, whereby the defendant jointly and severally guaranteed to the plaintiff unconditionally and at all times the prompt payment of any and all indebtedness not exceeding twenty thousand dollars which a certain person might at the time of the execution of the guaranty or at any time thereafter owe to the plaintiff, is not lost by failure to bring the action immediately upon the maturity of the note given to evidence the indebtedness, by reason of the provision of the guaranty giving the guarantee the option, upon default of the debtor, to proceed directly and "at once" against the guarantors to collect the full amount of the liability without first proceeding against the debtor, or foreclosing upon any collaterals held as security for such indebtedness.-Union Trust Co. v. Dickinson, 30 Cal. App. 91, 157 Pac. 615.

§ 2808.

1. Liability on guaranty of conditional obligation.-Such provision of the guaranty was merely intended to authorize the plain

tiff, if it so elected, to proceed against the guarantors directly and without first looking to the principal debtor for the extinguishment of the obligation and without seeking to recover satisfaction by resort to any collateral security which may have been pledged for its payment, and the words "at once" were clearly intended only to emphasize the right intended to be vested by the instrument in the plaintiff to proceed against the guarantors as independent obligors.-Union Trust Co. v. Dickinson, 30 Cal. App. 91, 157 Pac. 615.

§ 2814.

1. Continuing of guaranty-What is a.— A contract of guaranty attached to a lease, which guarantees to the lessors the payment of the rent specified in the lease at the times and in the manner therein stated "up to the amount of one thousand dollars," is a continuing guaranty applicable to any delinquency in the payment of rent, and is not satisfied upon payment of more than one thousand dollars of such rental.-Sinnige v. Oswald, 170 Cal. 55, 148 Pac. 203.

§ 2823.

1. Delay of creditor-Discharge of guarantor. Where the creditor grants the debtor an extension of time within which to pay, under such circumstances as to impair or to suspend his right to proceed against the debtor in accord with the terms of the original obligation there is such an alteration of the original obligation as will release the surety where it has been without his consent.-Bridge v. Connecticut Mut. Life Ins. Co., 167 Cal. 774, 141 Pac. 375.

§ 2836.

1. Surety not bound beyond contract.-In a suit against a surety the principal obligation and its nonpayment must be clearly set forth, because the surety's liability is only conditional.-Stockton Sav. Bank v. McCown, 170 Cal. 600, 150 Pac. 985.

2. The liability of a surety is not to be extended, without his consent, beyond the precise terms of his contract.-Alexander v. Bosworth, 26 Cal. App. 589, 147 Pac. 607.

3. When a surety has shown that the contract as to which he became surety has been changed, he has then shown that there has been an attempt to make him liable on a new and different contract; and the burden is then upon the other party to show that the surety has consented to the new contract. -Alexander v. Bosworth, 26 Cal. App. 589, 147 Pac. 607.

4. While it is elementary that sureties are never bound beyond the strict letter of their contract, it is also elementary that a bond given to guarantee the execution of a contract according to its terms becomes a part of such contract, and to that contract the sureties become parties the same as though they had actually made and executed the contract themselves.-W. P. Fuller & Co. v. Alturas School District, 28 Cal. App. 609, 153 Pac. 743.