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ton Fireproofing Co. 'v. Granfield, 28 Cal.

the first permanent entries of the transacApp. 326, 152 Pac. 317.

tions, that they were made at a time, or 5. The credibility of witnesses and all within reasonable proximity to the time of questions of fact are matters exclusively for the respective transactions, and that the the determination of the jury.- People v. person making them had personal knowlStephens, 29 Cal. App. 616, 157 Pac. 570. edge of the transactions or obtained such

knowledge from a report regularly made to $ 1848.

him by some other person employed in the 1. Declarations, etc., of third persons.

business whose duty it was to make the The declarations of a third person are not

same in the regular course of business.admissible in evidence against a party to the

Montgomery & Mullen Lumber Co. v. Ocean

Park Scenic Ry. Co., 32 Cal. App. 32, 161 litigation, in the absence of any showing of

Pac. 1171. agency or authority on the part of declar

2. ant.-Flickinger v. Wren Investment Co.,

In an action to recover the balance 172 Cal. 132, 155 Pac. 627.

due for lumber sold, it is not error to per

mit the manager of the lumber company to § 1849.

testify as to the correctness of the accounts,

where the books were kept under his direc1. Declarations and acts of prior owner.

tion and he had personal knowledge that the -Acts and declarations of a grantor, made

charges were correct, and the entries made after he has parted with the title to the

at the time of the transactions to which property and in disparagement of it, are in

they related.--Montgomery & Mullen Lumadmissible when made in the absence of the

ber Co. v. Ocean Park Scenic Ry. Co., 32 Cal. grantee, but where the very question at

App. 32, 161 Pac. 1171. issue is as to whether the grantor had ever

3. -Secondary evidence.—Secondary eviparted with title, the conduct and declara

dence of the contents of a letter is admistions of the grantor subsequent to the mak

sible, where it is shown that the original is ing of the deed are admissible as bearing

in Mexico.-Mackroth v. Sladky, 27 Cal. App. on the issue as to whether there had been a

112, 148 Pac. 978. delivery of the deed.-Williams v. Kidd,. 170 Cal. 631, Ann. Cas. 1916E 703, 151 Pac. 1.

3 1856. 2. The declarations of a prior owner, made

1. while he held title, against his interest as

Parol evidence respecting writings.such owner, are admissible against his suc

Where a written agreement purports to be cessor in interest, with regard to personal

complete, parol evidence is no more admis. property as well as real estate.-Cooper v.

sible for the purpose of adding to its terms Spring Valley Water Co., 171 Cal. 158, 153

than would such evidence be proper in an Pac. 937.

effort to vary the terms of the instrument

itself.-Empire Investment Co. v. Mort, 169 $ 1854.

Cal. 732, 147 Pac. 960.

2. In an action under the provision of the 1. Part of transaction proved-Balance

contract that "if at any time prior to the admissible.—It is proper to interrogate a

completion of the equipment, the work witness on cross-examination as to those

thereon be discontinued by fire or any cause parts of the conversation on the same sub

other than the fault of the (contractor), ject which he had not detailed in his direct

there shall be immediately due and payable examination, but where no such cross-exam

from the (owner) a sum equal to the value ination is attempted, it is not the duty of

of all goods destroyed, materials furnished, the court either of its own motion, or upon

labor and services rendered at the time of request of counsel to order the witness to

discontinuance," parol evidence is not adnarrate the entire conversation.—People v.

missible to prove an oral agreement that Coutcure, 171 Cal. 43, 151 Pac, 659.

the installation was to be completed within 2. When the record on appeal does not

three weeks from the date of the contract. contain a copy of the letter which was re

-Roughton v. Brookings Lumber & Box Co., fused admission the court on appeal has no

26 Cal. App. 752, 148 Pac. 539. means of determining whether the letter

3. In an action on a certified check, given was relevant or had any reference to the

in payment of corporate stock, oral evidence pending negotiations between the parties,

is not admissible to show that the word and therefore can not say whether the trial

"bearer" was left in the instrument by miscourt, having the letter before it, was in

take and that the check was not meant for error in refusing its admission in evidence.

the seller.-Bank of Bakersfield v. Conner, -McIntosh v. Hunt, 29 Cal. App. 779, 157

29 Cal. App. 153, 154 Pac. 869. Pac. 839.

4. Where in an action to recover damages

for the alleged breach of a written contract 8 1855.

for the delivery of hops during the year 1. Written instrument Construction 1911, the answer sets up the contemporaneproved.-In order to lay the foundation for ous execution of two other instruments callthe admission of books in evidence, it must ing for similar deliveries in the years 1909 be shown that they are books of account and 1910, and further alleges that the two kept in the regular course of business, that instruments with the one in suit, by the the business is of a character in which it is terms of a collateral contemporaneous oral proper or customary to keep such books, that agreement, constituted but one single and the entries were either original entries, or indivisible contract conveying single

a

transaction, but which for the convenience water, or both, and before such an intention of the parties was expressed in three separ- can be imputed to the board or deduced ate instruments, which were executed by from its action or nonaction it should be the parties thereto at the same time upon made very clearly so to appear.-People v. the consideration and with the understand- Williams, 29 Cal. App. 552, 156 Pac. 882. ing and agreement that the three instruments would constitute but a single contract 1860. for the purchase and sale of forty thousand

1. Circumstances to be considered_Conpounds of hops per year for three successive

struction of section.-This section, with secyears from the crops produced upon the hop

tion 1647 of the Civil Code, simply enacts the ranch of defendants, it is permissible to

common law rule. It is never within their permit parol evidence to establish such allegations without doing violence to the rule

contemplation that a contract reduced to prohibiting the admission of oral evidence

writing and executed by the parties shall

have anything added to or taken away from to alter, vary or contradict the terms of a

it by evidence of “surrounding circumwritten instrument.-Torrey v. Shea, 29 Cal.

stances." This rule of evidence is invoked App. 313, 155 Pac. 820.

and employed only in cases where upon the 5. In order to let in evidence of a col.

face of the contract itself there is doubt lateral agreement between the parties, such

and the evidence is used to dispel that doubt, agreement must be consistent with the

not by showing that the parties meant terms of the writing, and the evidence must

something other than what they said, but not tend to vary or contradict the terms of

what was meant by what they said.the written instrument or to defeat its op

United Iron Works v. Outer Harbor D. & W. eration.—Piper v. Kellerman, 32 Cal. App.

Co., 168 Cal. 81, 141 Pac. 917. 128, 162 Pac. 423.

2. 6. Evidence of an oral contemporaneous

In an action to recover the purchase

price due under a contract to purchase at a agreement conflicting with the plain terms

fixed price specified blocks of capital stock of a written contract is inadmissible.-Loco

the admission of evidence of the circummobile Co. of America v. Belasco, 32 Cal. App. 329, 162 Pac. 920.

stances surrounding the execution of the

contract which merely confirmed its proper 8 1858.

legal construction was not injurious where

the same result would necessarily have been 1. Construction of statutes.-Statutes im

reached without that evidence. Provident posing penalties are, for humane reasons,

Gold Min. Co. v. Manhattan Securities Co., subjected to strict construction.—Symmes

168 Cal. 304, 142 Pac. 884. V. Sierra Nevada Min. Co., 171 Cal. 427, 153 Pac. 710.

8 1869. 2. In construing statutes the object to be

1. accomplished by the act is to be ascer

Proof of negative allegations.—It is tained and its provisions considered and so

not necessary in such an action to introduce construed, if possible, that all its parts may

the note in evidence to prove its nonpayhave effect and operate harmoniously to ef

ment, for the allegation of nonpayment is a fectuate that object.-People v. Cole, 28 Cal.

negative allegation which the plaintiff is App. 448, 152 Pac. 945,

not required to prove.-Miller & Lux Dunlap, 28 Cal. App. 313, 152 Pac. 309.

2. 8 1859.

Very slight evidence is sufficient to

shift the burden of proof as to a negative 1. Intent of legislative bodies.-Specific

fact.—Titus v. Whiteside, 228 Fed. 965. provisions relating to a particular branch of a subject must govern that branch, as

8 1870. against general provisions in other parts of the statute, although the latter, standing

FACTS PROVABLE ON TRIAL. alone, would be broad enough to include the 1. Construction of section (subd. 9). subject to which the more particular provi- 2, 3. Under subdivision 3—Admissions and gions relate.-Turner v. Wilson, 171 Cal. 600,

conduct. 154 Pac. 2.

4-8. Under subdivision 4 - Dying declara2. A change in the law extending the

tions. time in which a proceeding may be com

9. Under subdivision 5-Act or declaration menced will not be considered as operating

of agent or partner. to create a new right as to one where the

10. Under subdivision 12-Usage, when. time under the old law had already expired, unless the intent to accomplish this is very

1. Construction of section (subd. 9).clearly expressed.-Schmitt v. White, 172 The operation of railroads, and especially of Cal. 554, 158 Pac. 216.

interurban railroads, may be termed 3. In construing the intention of the "trade" within the meaning of this subboard of supervisors in enacting an ordi- division.-Vallejo & Northern R. Co. v. Reed nance creating supervisorial districts, it must Orchard Co., 169 Cal. 545, 147 Pac, 238. be assumed that the board intended to in- 2. Under subdivision 3—Admissions and clude within the boundaries of the several conduct.--In prosecution under Penal districts all the territory of the county, and Code, section 269b, the admission of the denot to leave strips of territory, without local fendant that he was the father of a child government, lying between any two of the born to his companion in crime while they districts, whether consisting of land, or were living together as husband and wife,

V.

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and evidence that the wife's husband had altercation in which he received the fatal no opportunity for sexual relations with her wound may properly be admitted.—People during the requisite period, is admissible.- v. Level, 27 Cal. App. 257, 149 Pac. 772. People v. Woodson, 29 Cal. App. 531, 156 Pac. 9. Under subdivision Act or declara378.

tion of agent or partner.-In an action to 3. In a prosecution under section 269b of recover the contract price of certain grapes the Penal Code evidence is admissible show- alleged to have been sold and delivered uning the defendant's attitude and conduct der the terms of a contract which designated when he heard his companion introduced as the place of delivery and acceptance as other his purported wife.—People v. Woodson, 29 than the place of shipment, there is no error Cal. App. 531, 156 Pac. 378.

in admitting proof that prior to and at the Under subdivision 4-Dying declara

time of such shipment, the authorized agent tions. It is held in this case that a proper of the buyer approved the quality of the foundation was made for the admission of grapes and accepted them as sufficient under dying declarations and that evidence of such the contract at the point of their shipment. declarations was properly admitted.-People --Reese v. G. B. Amigo Co., 31 Cal. App. 450, v. Level, 27 Cal. App. 257, 149 Pac. 772.

160 Pac. 837. 5. Where it is made to appear that the

10. Under subdivision 12—Usage, when. declarant was wholly obtuse to religious

-A usage can not be given in evidence to convictions, entertaining a complete dis

relieve a party from his express stipulation, belief in a future spiritual existence, or had

or to vary a contract certain in its terms; no regard whatever for the theory of re

but it has a legitimate office in aiding to wards and punishments in the hereafter, his

interpret the intentions of parties to a constatement in extremis would not be sup

tract, the real character of which is to be ported by those considerations which may

ascertained, not from express stipulations, naturally be supposed to exercise an over

but from general implications and presumpruling influence upon the minds of men in

tions.-Standard American Dredging Co. v. such circumstances. In such a case even

Oakland, 30 Cal. App. 237, 157 Pac. 833. though the competency might not be destroyed its credibility would be greatly im- 8 1875. paired, and when given under such circum

JUDICIAL NOTICE. stances it should never be submitted to a

1. Under subdivision 1-of abbreviations jury unaccompanied by an explicit admonition by the court that it should be viewed

commonly used.

2. Under subdivision 20f operation of with great caution.-People v. Lim Foon, 29 Cal. App. 270, 155 Pac. 477.

local option law.

3-5. Under subdivision 3—Of acts of legis6. A dying declaration is admissible when

lature, of own acts, etc. it is made to appear that it was made by a

6-10. Under subdivision 8-Of laws of nadying person under a sense of impending

ture. death, and that such declaration related to

11. —of time, measure of. the cause of his death.-People v. Lim Foon,

12. -of science and invention, when. 29 Cal. App. 270, 155 Pac. 477.

13, 14. —of expectancy and mortality tables. 7. An instruction in which it was declared that dying declarations should be re- 1. Under subdivision 1-0f abbreviations ceived with caution, and that unless it ap- commonly used.-Courts take judicial notice peared that the declaration made by the of the meaning of abbreviations of words deceased just prior to his death accusing commonly used; and it is held in this case the defendant of having fired the fatal shots that there is no merit in the contention that was made "under a clear opinion of impend- abbreviations used to designate the official ing death, you can not consider such dec- capacity in which the president and secrela ration as evidence in this case, and the tary of a corporation signed a promissory court cautions you ... not to give as much note were insufficient to show such official weight to such evidence as if the

capacity.-Union Trust Co. v. Ensign-Baker statement had been testified to in health and Refining Co., 29 Cal. App. 641, 157 Pac. 613. subject to cross-examination,” is properly 2. Under subdivision 2-Of operation of refused, where the jury was instructed to local option law.–The operation of the receive with caution the evidence of the Wyilie Local Option Law, in that a given dying declaration "for the reason that the city, town, or district is "no license" terrideclarant had not been administered an tory, is not a fact "established by law" of oath, and an opportunity for cross-examina- which judicial notice will be taken.-People tion has not been afforded the defendant v. Mueller, 168 Cal. 521, L. R. A. 1915B 788, and that the declarant might be influenced 143 Pac. 748. against the defendant," and for the further 3. Under subdivision 3-0f acts of legisreason that the physical condition of the de- lature, own acts, etc.—The rule that courts ceased when making the statement might will take judicial notice of their own rechave been such as to render questionable ords is limited to proceedings in the same the reliability of his declaration.-People v. case; hence the supreme court will not juLim Foon, 29 Cal. App. 270, 155 Pac. 477. dicially know that since the appeal of the 8. While to be admissible in evidence a

before it the judgment on

which dying declaration must generally not be a the case was founded has been reversed, mere matter of opinion, yet a declaration by where such fact is not shown by the record. the decedent that he was not to blame in the It is well settled that courts can not in one

same

case

case take judicial notice of their records in out foundation proof.-Froeming v. Stocka different case.-Sewell v. Price, 164 Cal. ton Elec. R. Co., 171 Cal, 401, 153 Pac. 712. 265, 128 Pac. 407, 410.

14. Courts may take judicial notice of 4. In a controversy over tide-lands situ- the mortality tables in common use.-Dickated within the bay of San Pedro, in which inson v. Southern Pac. Co., 172 Cal. 727, 158 the city of Los Angeles was substituted as

Pac. 183. a defendant in place of the city of Wilmington, the court will take judicial notice of § 1880. the act of legislature of May 1, 1911, passed

PERSONS WHO CAN NOT TESTIFY. pending the suit, granting to the city of Los

1-4. Children of tender age (subd. 2). Angeles all the right, title, and interest of

5–7. Under subdivision 3—Other party being the state in all the tide and submerged lands

dead. within the city's boundaries, as then consti

8, 9. —Purpose of rule in subdivision 3. tuted, in trust for certain enumerated uses and purposes of public navigation and com- 1. Children of tender age (subd. 2).—The merce, the lands subject to the controversy law does not declare that children under being among those so granted, and will con- ten shall not be competent to testify, but sider such city as successor to the state for provides that their incompetency as such all the purposes of the suit.-Patton v. Los shall only be declared when to the trial Angeles, 169 Cal. 521, 147 Pac. 141.

court it is made to appear that they are in5. Courts will take judicial notice of

capable by reason of the immature judgment their records and officers. Judicial notice is necessarily found in children under ten years based upon convenience and expediency and

to receive accurate impressions of the facts its application is not confined to courts of concerning which they may be called upon record.—Anderson v. Board of Dental Ex- to testify and to state them truly:-People v. aminers, 27 Cal. App. 336, 149 Pac, 1006. Dunlop, 27 Cal. App. 460, 150 Pac. 389.

2. The burden of showing the incompe6. Under subdivision 8–of laws of na

tency of a child under this section is upon ture.-It is a fact, of which the court may well take judicial notice, that there is no

the person who questions the competency, county in this state in which practical

and in the absence of an affirmative showto serve all of its inhabitants with water by

ing of an abuse of discretion, the determinameans of one system of works. The topog

tion of the trial court as to the competency

is conclusive upon raphy will not permit it.—San Joaquin &

the appellate court.Kings River Canal & Irr. Co. v. Stevinson,

People v. Holloway, 28 Cal. App. 214, 151

Pac. 975. 164 Cal. 221, 128 Pac, 924.

3. The competency of a girl of the age 7. Judicial notice will be taken of the operation of the natural law of gravity in

of eight years as prosecuting witness, upon

a charge of assault with intent to commit the matter of the flow of water.—Miller & Lux v. Enterprise Canal & Land Co., 169 Cal.

rape, is for the trial court to determine by

the degree or extent of her understanding 415, 147 Pac. 567.

and knowledge and not by her age, and such 8. Judicial notice will be taken of such

determination must depend upon the manner explosives as gas, kerosene, gunpowder and

in which she gives her testimony, a test of dynamite.-Schmidt v. Union Oil Co., 27 Cal.

which is never available to a court of reApp. 366, 149 Pac, 1014.

view.--People v. Dunlop, 27 Cal. App. 460, 9. Courts can not judicially say that an

150 Pac. 389. electric welding machine in operation in a

4. The determination of the court as to public street will or will not frighten ordi

the competency of a child under ten is a narily gentle horses.-Fallon United

question so much in the discretion of the Railroads, 28 Cal. App. 60, 151 Pac. 290.

trial court as to be hardly reviewable.10. Judicial notice can not be taken that

People v. Dunlop, 27 Cal. App. 460, 150 Pac. the flow of water in one well is evidence of

389. a like flow in another well of different

Under subdivision 3-Other party bedepth, a mile or distant.-Fairbanks,

ing dead.-Where a wife sues the adminisMorse & Co. v. Zimmerman, 30 Cal. App. 81,

trator on a note of the deceased maker the 157 Pac. 509.

husband is a competent witness on her be11. -of time, measure of.-The court half where the note was her separate propmay take judicial notice that a particular

erty. He is not therefore within the prohidate of a month fell on a named day.-People bition of "parties or assignors of parties." v. Rudolph, 28 Cal. App. 683, 153 Pac. 721.

--Cullen V. Bisbee, 168 Cal. 695, 144 Pac. 12. -Of science and invention, when.- 968. The courts take notice of discoveries and

6. It is prejudicial error to permit the inventions that have become of common and plaintiff in an action for injuries to his augeneral use, such as the telephone.—Union tomobile to testify as to the matters of fact Const. Co. v. Western Union Tel. Co., 163

occurring before the death of the defendCal. 298, 125 Pac. 242.

ant's testator upon which he based his claim 13. -Of expectancy and mortality tables. and demand.—George V. McManus, Cal. -Courts take judicial notice of the standard App. 414, 150 Pac. 73. tables of life expectancy, and so of course 7. The plaintiff in an action to recover take judicial notice of the tables that are upon a rejected claim for professional serstandard tables, and any such table satisfac- vices rendered to a deceased person is not tory to the court may be introduced with- permitted, by reason of subdivision 3 of

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section 1880 of the Code of Civil Procedure, to testify as to the truth and correctness of entries against the deceased made by him in his book of account, but he may testify that he kept such book of account at the time stated and that the book produced was the one kept by him, and if such testimony is supplemented by evidence other than the testimony of plaintiff establishing the trustworthiness of the book, it is then admissible in evidence.-Colburn v. Parrett, 27 Cal. App. 541, 150 Pac. 786.

8. -Purpose of rule in subdivision 3.The purpose of the rule is that where the

voice of one party to the transaction is closed by death, the other will not be permitted to testify as to the facts of the transaction in enforcing a money demand against the estate of such deceased person.-George v. McManus, 27 Cal. App. 414, 150 Pac. 73.

9. The purpose of the rule stated in section 1880 of the Code of Civil Procedure is to prevent a plaintiff, in an action to recover upon a claim against the estate of a deceased person, from giving testimony which would in itself tend to establish plaintiff's claim or demand.-Colburn v. Parrett, 27 Cal. App. 541, 150 Pac. 786.

§ 1881. PERSONS CANNOT BE EXAMINED IN CERTAIN RELATIONS. There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person can not be examined as a witness in the following cases:

1. [Husband and wife.] A husband can not be examined for or against his wife without her consent; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other; or in an action brought by husband or wife against another person for the alienation of the affections of either husband or wife or in an action for damages against another person for adultery committed by either husband or wife.

2. [Attorney and client.) An attorney can not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity.

3. [Confessor and confessant.] A clergyman or priest can not, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.

4. [Physician and patient.) A licensed physician or surgeon can not, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient; provided, however, that after the death of the patient, the executor of his will, or the administrator of his estate, or the surviving spouse of the deceased, or, if there be no surviving spouse, the children of the deceased personally, or, if minors, by their guardian, may give such consent, in any action or proceeding brought to recover damages on account of the death of the patient; provided, further, that where any person brings an action to recover damages for personal injuries, such action shall be deemed to constitute a consent by the person bringing such action that any physician who has prescribed for or treated said person and whose testimony is material in said action shall testify; and provided, further, that the bringing of an action, to recover for the death of a patient, by the executor of his will, or by the administrator of his estate, or by the surviving spouse of the deceased, or if there be no surviving spouse, by the children personally, or, if minors, by their guardian, shall constitute a consent by such executor, administrator, surviving spouse, or children or guardian, to the testimony of any physician who attended said deceased.

5. A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.

History: Enacted March 11, 1872, founded upon $$ 395-399, Practice
Act; amended March 23, 1893, Stats, and Amdts. 1893, p. 301; by Code
Commission, Act March 8, 1901, Stats, and Amdts. 1900-1, p. 242; Act
held unconstitutional, see History, Kerr's Cyc. C. C., § 4; amended

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