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(4 Cal. App. 38)

PEOPLE v. THORNBURGH. (Court of Appeal, First District, California. June 27, 1906.)

1. FORGERY-ELEMENTS OF OFFENSE-NATURE OF INSTRUMENT.

A check drawn payable to the maker or order and not indorsed cannot be the subject of forgery, and where the forgery of the indorsement therein is relied upon to constitute the offense, under Pen. Code, § 470, it must be so charged in the information.

2. SAME-SUFFICIENCY OF INFORMATION.

An information charging the forgery of "a certain instrument in writing" which is set out and shown to be a check payable to the maker or order and with his name indorsed thereon does not charge the forgery of the indorsement, which is not a part of the check. but creates a separate contract, nor does it charge a public offense.

Appeal from Superior Court, City and County of San Francisco; William P. Lawlor, Judge.

Information for forgery against Herbert T. Thornburgh. Defendant was convicted, and appeals. Reversed.

Wm. S. Barnes and H. H. McCloskey, for appellant. U. S. Webb, Atty. Gen., for the People.

HALL, J. Defendant was convicted of the crime of forgery, and the case is before this court on his appeal from an order denying his motion for a new trial, and from the judgment.

The point was made, both upon demurrer and upon motion in arrest of judgment, that the information does not charge a public offense, and this is now the principal point relied upon for a reversal of the judgment. The information charges that defendant "did then and there willfully, unlawfully, feloniously and fraudulently, and with intent then and there to damage, prejudice and defraud one, Ignatz Beck, make and forge a certain instrument in writing, check, draft, order and writing obligatory, in the words and figures following, to wit: 'San Francisco, April 15th, 1905. No. The Crocker Woolworth National Bank of San Francisco. Pay to self or order $10.00 ten dollars. Clearing House No. 21. C. A. Baxter.' Indorsed 'C. A. Baxter.'" And then follows a charge in apt language of uttering the same instrument to Beck.

It is urged that because the instrument set forth in the information appears upon its face to be payable to the maker thereof no one could be defrauded thereby; that the defendant is not charged with forging the indorsement of the name of the maker and payee on the back of the instrument, which makes the instrument in legal effect payable to bearer, but is charged with forging the face of the instrument only. The check set forth in the information, without the indorsement, is not such an instrument as could be the means of defrauding any one. It purports to be an order signed by C. A. Baxter

for the payment of money to C. A. Baxter. If the order should be complied with and the money called for paid to Baxter, he certainly would not be defrauded; neither would the payer be defrauded, for, by accepting payment, Baxter would at once be estopped from disputing the genuineness of the signature. So, too, if Baxter indorsed the check, he would be liable on the check as fully as though he signed it. "An order to pay money to one's self cannot be the subject of forgery until the maker indorses it." Com. v. Dallinger, 118 Mass. 439.

This brings us to a consideration of the words following the check set forth in the information, to wit, "Indorsed 'C. A. Baxter.'" In the case of People v. Cole, 130 Cal. 13, 62 Pac. 274, the defendant E. J. Cole was charged with the forgery and utterance of a check which was set forth in the information as follows: ""Sacramento, Cal. Aug. 31, 1899. National Bank of D. O. Mills & Co. Pay to E. J. Cole or order, Ten dollars ($10.00). [Signed] E. J. Cole.' Indorsed on back 'S. B. Smith.'" In discussing the question as to whether or not the information charged a public offense against Cole, the court, after determining that the inits face (without the indorsestrument on ment) was not a subject of forgery, said: "It is claimed that the indorsement of 'S. B. Smith' was forged. If so, the information should have so stated. It shows that the check was indorsed 'S. B. Smith,' and we must presume that S. B. Smith indorsed it as stated in the information. It is not even hinted that the indorsement was forged or made without the authority of Smith.

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The information shows the check to bear the indorsement 'S. B. Smith,' but the indorsement is no part of the check. The contract of the indorser is a different and distinct contract from that of the maker. His liability is only conditional and dependent upon circumstances that may never transpire.' The cause was remanded, with directions to the lower court to sustain the demurrer.

Applying the doctrine of the Cole Case to the information now before us, we must hold that defendant is not charged with forging the indorsement, but on the contrary we must presume that the indorsement was in fact made by Baxter on the instrument set forth. If this were so, Baxter at once became liable on the instrument set forth as fully as though he had in fact drawn and signed it, and no one could be defrauded. thereby. It must be remembered that our statute makes it a crime to forge certain instruments with intent to defraud, and also to forge an indorsement to certain instruments with such intent. Pen. Code, § 470. Where the prosecution relies upon the forgery of the indorsement to make out the crime, it is a very simple matter to expressly charge a forgery of the indorsement.

For the foregoing reasons, and upon the

authority of People v. Cole, supra, the judgment and order are reversed, with directions to the trial court to sustain the demurrer.

We concur: HARRISON, P. J.; COOPER, J.

(4 Cal. App. 192)

DONNELLAN v. WOOD, CURTIS & CO. (Court of Appeal, Third District, California. July 31, 1906.)

1. LANDLORD AND TENANT-LEASE - CONSTRUCTION-TERMINATION.

A lease of reclaimed land at $10 per acre provided that if, by reason of flood or imperfect reclamation, any part of the land should be submerged or overflowed, so as to be impossible of cultivation prior to June 1st in any year, during the term of the lease, the lessee should not be bound to pay rent for the parts so submerged, and that the lease was subject to cancellation by the lessee by giving notice at any time during the term, should the reclamation not be sufficient to permit the cultivation and farming thereof at seasonable times of the year. On February 26, 1904, the premises were submerged, so that it was impossible to cultivate the land prior to the month of June, and on May 10, 1904, the lessee canceled the lease by notice, and in an action for rent prior to the date of cancellation it was proved that the cultivation prior to February was merely by way of preparation for seeding, and was profitless. Held that, the premises having been overflowed prior to June 1st, the lessee was not liable for rent for the first half of the year, payable April 1, 1904.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, §§ 777-779.] 2. APPEAL-JUDGMENT FOR PLAINTIFF-PREJ

UDICE.

Where defendant did not appeal from the judgment in favor of plaintiff for $20, such judgment will not be reviewed on plaintiff's appeal; she not being injured thereby.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4052-4062.]

Appeal from Superior Court, Sacramento County; Peter J. Shields, Judge.

Action by Marion J. Donnellan against Wood, Curtis & Co. From a judgment in favor of plaintiff for less than the relief demanded, she appeals. Affirmed.

A. L. Shinn, for appellant. J. Frank Brown, for respondent.

CHIPMAN, P. J. Action for rent of farming land under the terms of a written lease made by plaintiff to defendant. The land leased (about 531 acres) was situated in reclamation district No. 673, in the county of Sacramento. The lease was entered into October 29, 1902, and was for the term of five years commencing January 1, 1903. The rental was $10 per acre, and was to be paid in equal semiannual installments on April 1st and September 1st during the term. The lease contained, among other provisions, the following: "(5) It is further understood and agreed that if by reason of flood or imperfect reclamation any part of the leased premises shall be submerged or overflowed to such an extent as to render it impossible to cultivate

the same prior to the month of June in any year during the term of this lease, the party of the second part shall not be obliged to pay rental for the part or parts that may become submerged or overflowed. (6) It is further agreed that the party of the second part may at its option, cancel this lease by giving notice in writing to the party of the first part, or her duly accredited agent, at any time during the term of this lease, should the reclamation of the leased premises be not sufficient to permit the cultivation and farming thereof at seasonable times of the year." The defense made in the answer was that on February 26, 1904, the premises were overflowed and submerged to such extent as to render all the land impossible of cultivation prior to the month of June, or "to permit of the cultivation and farming thereof at seasonable times of the year"; that under the terms of the lease defendant did, "on the 10th day of May, 1904, cancel said lease by then and there giving plaintiff notice in writing, *** and that thereafter, on the 11th day of May, 1904, plaintiff signified her concurrence in the cancellation thereof in writing, and then and there signified her intention to and did treat said lease as terminated of said 10th day of May, 1904." There was evidence sufficient to show these allegations to be true, and the court so found. The record contains the following admissions: "That the lease was canceled by the defendant with the consent of the plaintiff and on the 10th day of May, 1094, according to its terms, and that plaintiff took possession of the leased premises on said day; that the reclamation of the premises * * * was not sufficient to permit the cultivation and farming thereof at seasonable times of the year; that the leased premises were flooded on the 1st day of June, 1904." In his letter, replying to defendant's notice of cancellation, plaintiff wrote: "While not admitting that the condition which justified you to cancel the lease existed, I nevertheless concur in the cancellation of the lease, and consider the same terminated of the date of your communication, namely, May 10, 1904, and I hereby demand of you payment of the rent due for said premises up to and including May 10, 1904, amounting to $3,145.85." The complaint was filed May 19, 1904, and the cause was tried in December, 1904.

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After the cause was submitted the court of its own motion set the submission aside, "and asked the defendant to introduce evidence as to the use of the premises by the defendant after the 1st day of January, 1904, and the value of such use." Thereupon defendant asked and obtained leave to amend its answer by alleging that the premises were rented for farming purposes, and that from January 1st to February 26, 1904, "defendant farmed and cultivated said premises, but that no rents, revenues, or profits were derived by defendant therefrom; that said premises were not susceptible of farming or cultivation for profit

during said time, and that the use thereof was of no benefit to defendant; that from said 26th day of February to May 10, 1904, said premises could not be farmed, cultivated, nor used for any purpose." The amendment was objected to by plaintiff, as also was all evidence thereafter submitted on the question of use and value of use from January 1st to February 26th as not within the issues. It appeared by the evidence that the cultivation given the land prior to February was by way of preparing it for seeding later on in the season, and that all the labor thus bestowed was profitless.

The court found that defendant had used the barns, for the storage of hay, from January 1 to May 10, 1904, which defendant had sold but had not delivered, and which was destroyed by the overflow of the premises, and for "the value of the use of said premises to defendant for the storage of said hay" the court awarded plaintiff judgment for $20, but denied any recovery for the stipulated rental payable April 1, 1904. The court was of the opinion that the defendant might have rested its defense upon the fact that it was wholly deprived of the beneficial use of the leased premises up to April 1st, but the learned judge preferred, as he stated in his opinion, to place his decision upon the provisions of section 1935 of the Civil Code, which provides: "When the hiring of a thing is terminated before the time originally agreed upon, the hirer must pay the due proportion of the hire for such use as he has actually made of the thing, unless such use is merely nominal, and of no benefit to him." Appellant contends that this section has no application to the leasing of real property, and that the rights of the parties rest alone on the terms of the lease. The question is an important one and ably argued; but, as we do not find it necessary to resort to the statute, we prefer to express no opinion upon the view taken by the trial judge.

Appellant states the question thus: Does the cancellation of the lease, made after rent has become due under the terms of the lease, relate back so as to cancel the obligations that have arisen between the parties before such cancellation? Answering the question in the negative, appellant advances the following propositions, which fairly present the points made in the argument: That the parties through the lease contracted definitely with reference to the time of payment, the condition for revocation, and specially provided conditions upon which rent should not be paid; that an action might have been maintained for rent due under the terms of this lease on the 2d day of April, 1904; that the defendant made it impossible to consider the conditions on the 1st day of June by terminating the contract, and therefore deprived itself of the benefit of that provision in the lease; that, having expressly stipulated that rent should be apportioned

with reference to the condition of the land on a certain date, such stipulation excludes an apportionment because of a previous termination of the tenancy; that the surrender of a lease does not operate as a discharge of rent already due; that the right of cancellation under the lease does not declare what the effect of the cancellation shall be, and hence the effect is to leave the parties in the position occupied by them at the time of cancellation with reference to mutual liability. Appellant states the rights of defendant as follows: An election either to hold the lease, pay the amount due on the 1st day of April, 1904, and claim its deduction on the 1st day of June, if the conditions warranted it, or else cancel the lease "according to its terms," and pay whatever was due at the time of cancellation. It may be conceded that some of appellant's propositions are sound and well supported by the authorities cited. For example, it is doubtless the rule generally that the surrender of a lease does not operate a discharge of rent already due. But, after all, the case must rest, as we view it, upon a proper construction of the lease, guided, of course, by recognized rules of law in arriving at such construction. It required no evidence to show, what is patent on the face of the lease, that the parties contracted with reference to the possible overflow of the land, thus rendering it unsuitable for occupation or cultivation. Hence liability to pay rent was made to depend upon the fact that this contingency did not happen, and the right to cancel the lease also depended on the happening of this contingency. There might have been a sudden and transitory submergence of the land by water, prior to June 1st, that would have passed away in time to enable the lessee to cultivate the land. But in order to fix a time beyond which the parties regarded it as impossible to cultivate the land for any given year, the limit was fixed to a time "prior to the month of June"; that is, if the land was overflowed and remained so on May 31st "to such extent as to render it impossible to cultivate the same," the lessee "shall not be obliged to pay rental for the part or parts that may become submerged or overflowed." But that by no means implies that defendant was liable for rent on April 1st, regardless of the then condition of overflow. We cannot agree with plaintiff that he had a right of action and could have recovered for rent on April 2d, admitting, as he does, that at that time the land was so overflowed as to make its cultivation impossible. We think the very terms of the lease preclude such view of the

It would violate the paramount object, manifestly in the minds of both parties, which was that there should be no payment of rental required if the land was rendered unsuitable for cultivation by reason of overflow. Any other construction would work gross injustice, and this the law will never

tolerate unless the parties have, by their contract, so tied the hands of the courts as to make them powerless to administer justice, which is not the situation here.

Appellant would obviate the manifest inequity of holding defendant to the payment of the April installment, notwithstanding that the land was then submerged by several feet of water, as the evidence shows, by giving to defendant the right to recover back the rent on June 1st "if the conditions warranted it." The terms of the lease neither require nor admit of such construction. Cases cited where rented buildings were burned after rent had accrued do not seem to us to be in point, for here the possible use of the land was destroyed some time before April 1st, to wit, February 26th, and this condition continued not only to April 1st, but after June 1st. The water was so deep that it destroyed the hay stored in the barns, and the dwelling was inhabitable in the second story only. The land had ceased to be a farm, and had become a lake. But defendant had agreed to pay rent for land at a stated rate per acre. The risks of overflow were taken by plaintiff, and there would be an utter failure of consideration where the land had become impossible of cultivation from the cause stipulated against. We cannot agree with appellant as to the consequences flowing from the cancellation of the lease. It is true that it does not directly point out the effect of the cancellation, but reading the two clauses together, numbered 5 and 6, and considering the cause for which cancellation is allowable, it is quite evident that, if the cause existed, the lessee had the right not only to cancel, but to be acquitted of the promise to pay rent. Appellant says the effect was "to leave the parties in the position occupied by them at the time of cancellation with reference to mutual liability." What was that position? Simply this: If the premises were "overflowed to such extent as to render it impossible to cultivate the same, the party of the second part shall not be obliged to pay rental."

On May 10th the flood of February was still on, and the parties, with this fact in their minds, mutually agreed that the lease might be and it was canceled. Plaintiff's consent was not necessary to the exercise of de fendant's right, but he did consent, and, although demanding rent, it was not made a condition to his consent, and would have availed nothing if it had been. He went into possession and the contract was at an end. We have held that defendant was not liable for rent on April 1st, and, as the premises were overflowed and that was the cause of the cancellation, the "position of the parties" on May 10th was that of mutual nonliability, rather than that of liability of either to the other. It must have been obvious to both parties on May 10th that cultivation of the land "at seasonable times of the year" had

become impossible, and such was the fact, as clearly appeared and was admitted. What would have been the liability of defendant had he canceled the lease on May 10th, and had the water subsided, and the land become susceptible of cultivation, "prior to the month of June," we need not consider, for no such event happened. The land was still under water on June 1st. We are unable to discover any legal or equitable ground upon which plaintiff could hope to recover under the lease, in view of the facts and circumstances. So far as the judgment for $20 is concerned, defendant has not appealed, and plaintiff is not injured thereby, although he objected to the evidence on which it rests and stoutly contends that the theory of the law supporting it is erroneous.

Some point is made, but we think not well founded, as to the lack of evidence to sustain certain findings.

The judgment and order are affirmed.

We concur: MCLAUGHLIN, J.; BUCKLES, J.

(4 Cal. A. 180) BULLY HILL COPPER MINING & SMELTING CO. v. BRUSON et al. (Court of Appeal, Third District, California. July 28, 1906. Rehearing Denied by Supreme Court, Sept. 26, 1906.)

1. APPEAL-ASSIGNMENTS NOT DISCUSSED IN

BRIEF.

Assignments of error not discussed in appellant's brief will be taken as waived.

[Ed. Note.-For cases in point. see vol. 3, Cent. Dig. Appeal and Error, §§ 4256-4261.] 2. EASEMENTS WAY OF NECESSITY-RELATION OF PARTIES.

That there may be a way of necessity the relation of grantor and grantee must have existed between the parties, or persons in their lines of title; and it is not enough that the land was once part of the public domain, and hence owned by a common grantor.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Easements, §§ 50-54.]

3. SAME-ABSENCE OF OTHER WAY.

That defendants may have a way of necessity over plaintiff's land it is necessary that there be no other way to reach their lands; and it is not enough that it is the only way by which a wagon can reach them, if a way can be constructed over defendants' lands.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Easements, §§ 50-54.]

Appeal from Superior Court, Shasta County; C. M. Head, Judge.

Action by the Bully Hill Copper Mining & Smelting Company against W. C. Bruson and others. From an adverse order, defendants appeal. Affirmed.

Rehearing denied by by Supreme Court; Beatty, C. J., dissenting.

C. B. Sessions and Guy Shoup, for appellants. Reid and Dozier, for respondent.

MCLAUGHLIN, J. This action involves the right of defendant to use a wagon road

about three miles in length, extending from plaintiff's mines and buildings to the main road near Copper City, Shasta county. Plaintiff insists that the road is a private thoroughfare, while defendants insist that it is a public road. It crosses lands owned by plaintiff and other private owners, and public lands of the United States, and at one point passes over land owned by defendant, Shasta Electric Golden Copper Company. In 1877 or 1878 a tramway was constructed for the purpose of conveying ore from mines now owned by plaintiff to a mill near Copper City. In course of time the tramway was abandoned as such, and the ties and rails of which it was constructed were torn up and sold. From 1894 to 1896 the grade, theretofore used for the tramway, was at times freely used by persons having occasion to use the same, but the grade and bridges were so destroyed that it could only be used in places, and no part of it was used by the public generally for any purpose. In 1896 one Sallee, plaintiff's predecessor in interest, widened the grade into a wagon road and constructed the same for his own use and benefit as an an appurtenance to said mines, and not for the public use or benefit, and whatever rights he acquired passed to plaintiff as appurtenant to the mines, which were thereafter conveyed to it. The public was not at any time invited, permitted, or allowed to use the road, nor was any person who had occasion to use it invited or given permission to do so. It was not freely, openly, notoriously, or continuously used as a public highway with the consent of plaintiff or its predecessors, but was used by plaintiff and its predecessors in interest for their own convenience and the convenience of their employés.

In October, 1904, defendants Camp and Brown, as lessees of the Shasta Electric Golden Copper Company, commenced the construction of a hotel on land owned by their lessor, near where this road crossed said land, and for the purpose of enabling four and six horse teams to go along said road and bring lumber and supplies to them said defendants widened said road in places and built a bridge and culvert thereon.

as plaintiff had knowledge of such work, its agent notified defendants that the road was a private thoroughfare, and later erected a gate across the road at a point on plaintiff's land in order to prevent defendants from using the road and cutting it up with heavy teaming. The only manner in which defendants can reach said hotel or the mines owned by said Shasta Electric Golden Copper Company from any public road by team or wagon is by going over said road. The road was constructed and used by plaintiff and its predecessors for years before the patent to lands owned by the Shasta Electric Golden Copper Company was issued, and the right of plaintiff to use it at any time or for

any purpose is admitted. It clearly appears that plaintiff and its predecessors had not only used the road for their own convenience, but that they claimed and exercised the right to control or prevent its use by others. The municipal authorities neither constructed the road nor purchased it from those who did, and the overwhelming preponderance of the evidence shows that it was never directly or indirectly dedicated to the use of the public.

The appellants assign many errors and specify many particulars in which the evidence fails to support the findings in the statement of the case found in the transcript; but, as they do not mention or discuss any of these points in their brief, they must be taken as waived. Bell v. S. P. R. R., 144 Cal. 572, 77 Pac. 1124; Humphrey v. Pope (Cal. App.) 82 Pac. 223. In fact, the brief filed in behalf of appellants is virtually an abandonment of their original position and contention as disclosed by the pleadings. There is no word in the brief touching the public or private character of the road; the sole burden of the argument being that appellants are entitled to use it as a way of necessity. This argument is pregnant with the admission that the road is private, because it necessarily assumes that plaintiff's admitted and acknowledged right must yield to the necessities of defendants. There are many reasons why the contention of appellants in this behalf cannot be sustained. To begin with, no such defense was set up in the answer, and no such issues were tried by the court. But, waiving this, the facts essential to the existence of a way of necessity were not established by the evidence or found by the court. "The right of way from necessity must be in fact what the term naturally imports and cannot exist except in cases of strict necessity. It will not exist when a man can get to his property over his own land. That the way over his own land is too steep or too narrow or that other and like difficulties exist does not alter the case, and it is only when there is no way through his own land that a grantee can claim a right over that of his grantor. It must also appear that the grantee has no other way." Kripp v. Curtis, 71 Cal. 65, 11 Pac. 879.

There is nothing in this record to show that the relation of grantor and grantee ever existed between the plaintiff and any of the defendants. The mere fact that all of the land was originally part of the public domain and hence owned by a common grantor cannot confer the peculiar right out of which a way from necessity arises. If, however, it be fully conceded that all other basic facts essential to a way from necessity existed, the vital fact that there is no other way to reach the lands or property of defendants is lacking. True, the court found "that the only manner by which a wagon or team can

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