gage, it was agreed by and between the plaintiff and defendants that the defendants "should and would pay and discharge all taxes and assessments which might be assessed or levied upon said money so loaned by plaintiff to defendants, and on said mortgage, or on either said money or mortgage, anything in the said promissory note or mortgage to the contrary notwithstanding, and that said agreement was knowingly made and omitted from said mortgage with intent to evade the provisions of section 5 of article 13 of the constitution of this state." And by reason of this agreement defendants deny that any interest ever became due or payable on the note, and, as a conclusion of law, claim that the action was prematurely commenced. The decree was in favor of the plaintiff, foreclosing the mortgage for the full amount of principal, with compound interest. The defendants appeal from the judgment on the judgment roll, containing a bill of exceptions showing that defendants offered to prove the alleged contemporaneous agreement to pay the taxes and assessments on the mortgage by oral evidence, which was rejected by the court on the ground that such agreement could be proved only by written evidence, and the defendants excepted to this ruling of the court. Counsel for appellants contend that the court erred in rejecting the proffered oral evidence to prove the alleged agreement, and this raises the only question that need be considered. The only substantial difference between this case and the late case in this court of Burbridge v. Lemmert, 32 Pac. Rep. 310, is that in that case the concurrent agreement to pay the taxes on the mortgage was in writing. In that case it was held that the written agreement was in contravention of section 5 of article 13 of the constitution of this state, and subjected the mortgagee to the penalty denounced by that section, namely, that the note and mortgage, as to any interest specified therein, "shall be null and void," and, consequently, that no interest ever accrued or became due, and the failure of the mortgagor to pay the interest specified in the note or mortgage was not such a default as entitled the mortgagee to treat the principal as due before the expiration of the term of credit expressed in the note, (in this case, 10 years after the date of the note.) I think the court erred in rejecting evidence of that part of the contract which was oral. The "contract," in the sense of section 5, art. 13, of the constitution, existed as an entirety, independently of any writing, though parts of that contract were evidenced by writing. Indeed, writing is no part of any contract, though it is often made evidence of contracts; and, according to some general rules, certain classes of contracts can be proveu only by written evidence, but to all these general rules there are exceptions. As an example in point here, section 1856 of the Code of Civil Procedure provides: "When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore, there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except in the following cases: '(1) Where a mistake or imperfection of the writing is put in issue by the pleadings. (2) Where the validity of the agreement is the fact in dispute; but this section does not exclude other evidence to establish illegality or fraud.'" In this case the express and only object of proving that part of the contract which is alleged to have been omitted from the writing for the purpose of evading the constitution was to show the illegality, and consequent nullity, of the note and mortgage, "as to any interest specified therein." See, also, Whart. Ev. § 935: Greenl. Ev. § 284; Buffendeau v. Brooks, 28 Cal. 641. The purpose of section 5 of article 13 of the constitution, so far as it goes, is on a line with the object of the usury laws of other states, and therefore the decisions of other states in respect to attempted evasions of usury laws are more or less applicable to this case. Of these, the following seem very aptly in point: Clark v. Badgley, S N. J. Law, 233; Stein v. Swensen, 46 Minn. 360, 49 N. W. Rep. 55. I think the judgment should be reversed, and the cause remanded for a new trial. We concur: TEMPLE, C.; SEARLS, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded for a new trial. (4 Cal. Unrep. 147) DUPUY v. MACLEOD, (No. 19,118.) (Supreme Court of California. Aug. 25, 1893.) STATUTE OF FRAUDS-SIGNATURE OF PARTY TO BE CHARGED. The fact that a contract for the sale of chattels is reduced to writing does not, under the statute of frauds, render necessary the sig nature of the party to be charged, where the requirement of a writing was obviated by an iminediate delivery of the goods sold. Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; W. N. Clark, Judge. Action by E. Dupuy against Malcolm Macleod to recover for goods sold and delivered. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed. C. W. Pendleton, for appellant. O'Melveny & Henning, for respondent. SEARLS, C. This action was brought to recover the sum of $500, the balance due on a sale of a stock of merchandise and store fixtures sold and delivered by the plaintiff to defendant, at Los Angeles, May 31, 1890. The real question in issue is this: Plaintiff avers the sale was made for $1,500, to be paid as follows: $1,000 in cash, the remaining $500 to be paid as follows: When $100 worth of stock was sold, $20 to be deducted by defendant as commissions, and $80 paid to plaintiff, and so on until the $500 was paid. If the stock sold did not amount to sufficient to pay plaintiff $500, after deducting 20 per cent., plaintiff was to receive the 80 per cent. of proceeds in full payment. He avers the sale of sufficient stock to entitle him to full payment under this agreement, and the evidence sustains him in this last assertion. Defendant avers that the agreement was that the $1,000 paid in cash was first to be deducted from the proceeds of sales, before any further payments were made, and then payments were to be made as averred by plaintiff; and he avers that $1,000 had not been realized from sales when the action was brought, and hence that nothing was due. Conceding his theory to be correct, the evidence sustains his position that $1,000 had not been realized from sales. It is admitted on all hands that the sum of $1,000 was paid by defendant to plaintiff at the date of the sale, and that the defendant went into possession of the property at once, and has ever since retained the same. Plaintiff had judgment, from which, and from an order denying a new trial, this appeal is prosecuted. The first error assigned by appellant is that the court did not find upon all the issues made by the pleadings, and (1) that it did not find upon the facts set forth by defendant in his second and separate answer. The facts set up in the separate defense were that the agreement was that defendant was first to appropriate from the proceeds of sales the $1,000 cash, as before stated, before any proceeds were to go to plaintiff. The finding was quite full on the point, and fully sustained the allegations of the complaint. It was not necessary for the court, after finding that the agreement was that defendant was to keep an accurate account of all sales, and, when the sales amounted to $100, $80 thereof was to be paid to plaintiff, and $20 retained by defendant, etc., to go on, and find, as a negative proposition, that they did not agree as set out by defendant. It was conceded that an agreement was made. Just what that agreement was, was the point submitted to the court, and the finding specifies it distinctly, and passes upon the question. It is further objected that the court failed to find upon the fourth allegation of the complaint, which was denied by the answer. The substance of this allegation is that the agreement of sale was reduced to writing, and signed, and that the writing was in the possession of defendant. The agreement had been pleaded, and this allegation was evidently inserted for the purpose of showing, as is often done, that it was out of plaintiff's possession, and as a predicate for an amendment, if it should turn out different from the pleading, and also for the purpcse of giving to the defendant notice that it would be relied upon in sustaining plaintiff's cause of action. The important question was, was there a sale, and what were its terms? These questions were fully passed upon, and it was unnecessary to go further. There was a finding upon all the material issues, which is sufficient. It is next contended that the court erred in admitting in evidence what is termed a "written memorandum of the contract," which is the contract of sale alluded to in the complaint, and is in the following language: "Los Angeles, Cal., May 31, 1890. I have this day sold my entire interest in the seed, feed, produce, commission, and all business of whatever nature, carried on at the store 245 South Main street, Los Angeles, to Malcolm Macleod, on the following terms, viz.: The price to be one thousand cash in hand paid, the receipt of which is hereby acknowledged, and five hundred dollars to be paid in the following manner: A correct account to be kept of all goods sold, and when sales to the amount of ($100) one hundred dollars are made, after deducting twenty per cent. commission for selling the same, ($80) eighty dollars to be paid over to E. Dupuy or order, and the same to be done until the full amount of five hundred dollars, net, is paid: provided so much can be sold from the stock now on hand, belonging to said Dupuy; but if there is not enough stock on hand to come to the amount of five hundred dollars, net, then the said Dupuy to accept the amount the stock sells for, as full compensation. The stock and fixtures turned over to M. Macleod is now in the store at 245 South Main street, and is entered on an invoice book, May 13, 1890, which book is marked 'A,' with the exceptions of some that has been sold from the same since that time, which is fully understood by said Macleod. Ed. Dupuy. Witness: J. M. Hixson." The instrument was admissible in evidence. There was evidence that it was drawn by | J. M. Hixson, who witnessed it at the store where the sale was made, at the request of the defendant, and at the time of the sale and delivery of the goods; that the consideration of $1,000, mentioned therein, was paid at the time; and that the bill of sale was left by Dupuy, the vendor, after signing it, on the desk; and that it remained in the possession of defendant until the trial, when, upon notice to him so to do, he produced it. As evidence to avoid the statute of frauds, it was defective, in not being signed by de fendant, Macleod, the party to be charged thereby. The statute of frauds, however, was not pleaded, and, if it had been, the plea would have been of no avail, under section 1973 of the Code of Civil Procedure, be cause there was an immediate delivery of all the goods sold to the purchaser, who thereafter retained possession, and a payment of $1,000, being part of the purchase price, to plaintiff. A writing to satisfy the statute of frauds is one thing. A writing which is admissible in evidence as to some of the facts of a sale is, or may be, quite a different thing. Beyond determining what shall be a sufficient compliance with the statute, the legislature has not attempted to change the principles of the law of evidence relating to written contracts. "Parties entering into any contract may either reduce its terms to writing, or may refer to some other writing, already in existence, as containing the terms of their agreement; and when they do so they are bound by what is written, whether signed by them or not." Benj. Sales, § 201. This, of course, assumes that the parties assent to the contract as written. Had plaintiff made an oral statement to defendant, precisely as contained in the writing, it would have been admissible in evidence. The fact that he made it in writing, and gave it to, or left it with, defendant, does not render it less admissible. There was sufficient evidence of assent on the part of defendant to entitle the instrument to admission in evidence. There was also evidence upon the part of defendant tending to show that he never assented to the agree ment, as set out. Not having been signed by him, this was proper; and it remained for the court to pass upon the issue tnus raised, which it seems to have done to the exclusion of the defendant's theory. There was a substantial conflict in the evidence, and evidence sufficient to support all the findings of the court, and the judgment and order appealed from should be affirmed. We concur: TEMPLE, C.; VANCLIEF, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed. (4 Cal. Unrep. 151) BITUMINOUS LIME ROCK PAVING & 1. The courts will take judicial notice that the city of Los Angeles is a municipal corporation, by virtue of the several statutes organizing it into such corporation, and extending its limits, and adding to and changing the powers of its officers. 2. An averment that "the city council of the city of Los Angeles * * ** passed a resolution of intention * that New High street, in said city, * * * be paved," is a sufficient averment that such street is an open public street; St. 1885, p. 147, § 1, providing that "all in the municipalities of this state now opened or dedicated, or which may hereafter be opened or dedicated, shall be deemed and held to be open public streets, * * and the city council of each municipality is hereby * invested with jurisdiction to or streets * der to be done thereon any of the work mentioned in" the act. 3. Code Civil Proc. § 456, provides that in pleading the determination of a board or officer the facts conferring jurisdiction need not be stated, but such determination may be stated to have been duly given or made. Held that, in an action to enforce the lien of a street-paving assessment, an averment "that all the several acts required to be done by said city council, said superintendent of streets, and this plaintiff have been duly done, made, and performed by it and them, in the manner and at the times and in the form required by law," is sufficient on general demurrer. Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge. Action by the Bituminous Lime Rock Paving & Improvement Company against J. E. Fulton and others to enforce a lien for street assessments. There was a judgment in favor of defendant Henderson, and plaintiff appeals. Reversed. Jay E. Hunter, for appellant. Jones & Carlton, for respondents. SEARLS, C. The plaintiff in this cause appeals from a final judgment entered in favor of defendants. The action was instituted in the superior court in and for the county of Los Angeles to enforce a lien against certain property of the defendants, described in the complaint, which lien was created by an assessment made by the street superintendent of the city of Los Angeles, to obtain payment for certain work done under an act entitled "An act to provide for work upon streets," etc., "within municipalities," approved March 18, 1885, as amended March 14, 1889, and known and designated as the "Vrooman Act." St. 1885, p. 147; St. 1889, p. 157. A demurrer was interposed to the complaint, which demurrer was sustained by the court, and, plaintiff declining to amend, final judgment was entered in favor of the defendant Charles Henderson. The denir rer was general, and averred that plaintiff's complaint "fails to state facts sufficient to constitute a cause of action against these defendants." The particular reasons moving the court below to sustain the demurrer do not appear in the record, and we can only divine them by a perusal of the complaint, aided by the suggestion of causes therefor contained in the briefs of counsel. It is urged by respondents that the complaint fails to aver that the city of Los Angeles is a municipal corporation, or that New High street is an open public street. The allegation of the complaint is "that * * * the city council of the city of Los Angeles, state and county aforesaid, passed a resolution of intention * that New High street, in said city, from the north line of Franklin street to the south line of Tem2 ** ple street, be paved and curbed," etc. The court will take judicial notice that the city of Los Angeles is a municipal corporation under and by virtue of several statutes of this state, duly passed for the pur pose of organizing it into such corporation, and extending its limits, adding to and changing the powers of its municipal officers, etc. Code Civil Proc. § 1875. A street is a "public thoroughfare or highway in a city or village." Black, Law Dict. tit. "Street." A street is something more than a highway, for, besides its use as a highway for travel, it may be used for the accommodation of drains, sewers, aqueducts, water and gas pipes, and for other purposes conducive to the general police, sanitary, and business interests of a city. Bouv. Law Dict. It is a public highway of a city or village, over which all the citizens of the land have a right to pass and repass at pleasState v. Moriarty, 74 Ind. 104; Perrin v. Railroad Co., 36 N. Y. 126; Kelsey v. King, 33 How. Pr. 43; City of Quincy v. Jones, 76 Ill. 244. Section 1 of the act of 1885, (St. 1885, p. 147) provides that "all streets ure. ** * * in the municipalities of this state now open or dedicated, or which may hereafter be opened or dedicated, shall be deemed and held to be open public streets for the purposes of this act, and the city council of each municipality is hereby invested with jurisdiction to order to be done thereor any of the work mentioned in section two of this act." Section 2 of the act, as amended in 1889, (St. 1889, p. 157,) authorizes the city council to order work done upon the streets, of the character in question in this case. The evident object of the first section of the statute of 1885 was to enlarge the term "street" so as to include, not only those that had been opened, but those also dedicated to street purposes, although not formally or officially accepted or opened as such. The effect was simply to make streets of a class which might not otherwise come within that category. When plaintiff, in its complaint, averred the passage of a resolution to pave and curb New High street, in said city, it was as comprehensive as the definition of the term "street," and was tantamount to an averment that it was an open public street in said city. The complaint, critically considered, is defective, in this: that many of its statements of facts are not full and explicit, but the denurrer is general. Where a complaint fails to state facts essential to a recovery, the defect may be reached by a general demurrer. Where, however, it states all the essential facts, but states them defectively, the error can only be reached by a special demurAgain, several of the apparent defects in regard to publication of notices, etc., are cured by the twelfth paragraph of the complaint, which avers "that all the several acts required to be done by said city council, said superintendent of streets, and this plaintiff have been duly done, made, and performed by it and them, in the manner and at the times and in the form required by law," etc. Section 456 of the Code of Civil Procedure rer. provides that, in pleading a determination of a board or officer, it is not necessary to state the facts conferring jurisdiction, but such determination may be stated to have been duly given or made, etc. Babcock v. Goodrich, 47 Cal. 512; City of Los Angeles v. Waldron, 65 Cal. 283, 3 Pac. Rep. 890; Paving Co. v. Bolton, 97 Cal. 8, 31 Pac. Rep. 625. Applying this rule to the jurisdictional facts, so far as the city council and street superintendent are concerned, and the complaint, although far from perfect, was impervious to the general attack made upon it. To mention the several objections of respondent in detail would subserve no useful purpose. The judgment appealed from should be reversed, and the court below directed to overrule the demurrer to the complaint, with leave to defendant to answer. We concur: TEMPLE, C.; BELCHER, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment appealed from is reversed, and the court below is directed to overrule the demurrer to the complaint, with leave to defendant to answer. (4 Cal. Unrep. 155) PERKINS v. WEST COAST LUMBER CO. (No. 19,124.) (Supreme Court of California. Aug. 25, 1893.) PLEADINGS-FINDINGS AS TO MATTERS NOT IN IsSUE-AMENDMENT ON APPEAL. 1. In an action for services as an attorney between certain dates, a finding of damages for defendant because of negligent advice given defendant at a time prior thereto must be disregarded, such negligence not having been pleaded. 2. Where the value of services sued for is found to be more than alleged in the complaint, the latter cannot be amended on appeal to conform to the findings. Commissioners' decision. Department 1. Appeal from superior court, San Bernardino county; John L. Campbell, Judge. Action by C. J. Perkins against the West Coast Lumber Company for attorneys' fees. From a judgment for defendant, plaintiff appeals. Reversed. Paris & Fox and Rolfe & Freeman, for appellant. Harris & Gregg, for respondent. TEMPLE, C. Plaintiff appeals upon the judgment roll. The points presented arise upon the pleadings and the findings of the court. Plaintiff sues for services as an attorney and counselor at law. His complaint states three causes of action. In the first it is alleged that defendant contracted with him June 1, 1888, for his services, agreeing to give him $35 per month as a general retainer, and as compensation for writing letters, adjusting claims, and for advice, and agreed to pay a reasonable compensation for services in prosecuting and defending suits; that he performed the general services until March 1, 1890, which were worth $735, and also performed other services during the same period in prosecuting and defending suits and drafting instruments for defendant worth $3,044.75; that he has been paid on account of such services $1,865.15. The second cause of action is for $116.20, money laid out and expended for defendant. The third count is a quantum meruit to recover for services alleged to have been rendered between June 1, 1888, and April 1, 1890, worth $4,079.75, and admitting a payment on account thereof of $1,865.15. Plaintiff demands judgment for $1,981.35. The answer consists of (1) a general denial; (2) an averment of a contract different from that alleged by plaintiff, with a plea of payment; (3) another statement of the contract between the parties, with a claim of full performance on the part of defendant; and (4) a counterclaim for goods sold plaintiff amounting to $2,867.10, of which $1,574.60 has not been paid. Defendant demands judgment in the sum of $1,574.60. The court finds the contract as it is averred by plaintiff. It also finds the value of the services on the general retainer to be $735, and for the other services $3,228.53, and that plaintiff laid out and expended for defendant the sum of $116.20; total, $4,079.73. It also finds that plaintiff is indebted to defendant for goods sold in the sum of $1,332.28. Plaintiff admits in his complaint payment of the sum of $1,865.15. There is no finding in regard to this matter. The court did find, however, that on the 17th day of April, 1888, which was prior to the employment alleged in the complaint, to which the other findings refer, plaintiff was employed by defendant in regard to its claim against one Newman, and in such employment so negligently advised the defendant in regard to the said demand that defendant lost the sum of $3,408.77, which sum it finds is justly due defendant as damages, and thereupon, as a conclusion of law, finds that defendant is entitled to judgment against the plaintiff in the sum of $661.40, for which, with costs, judgment was entered. The appellant contends here that the finding in regard to the damages resulting to defendant through the alleged negligence of the plaintiff must be disregarded, because it is not responsive to any issue in the case, and that plaintiff should be permitted to so amend his complaint that it will sustain a judgment for the sum of $2,747.47, which the findings show is due plaintiff, if the finding in regard to the alleged damage be stricken out. The first part of this contention I think must be sustained. There is no allusion to the alleged negligence in any pleading, and there is therefore nothing to support the finding of the damage as a counterclaim. The alleged negligence was not in the performance of any part of the services for which suit is brought, and therefore, if the contention was well founded, did not affect the value of those services. Even if it were conceded that the claim for such damage by defendant is a cross demand, within the meaning of section 440 of the Code of Civil Procedure, it would still be necessary to plead it under the circumstances of this case. It cannot be considered the debit side of the account sued on. It is an unliquidated demand for damages. But it does not follow that plaintiff is entitled to judgment on the findings for the balance that will then appear to be due. Leave might as well be granted the defendant to amend its pleading to cover the judgment already entered. I think the fairest thing will be to remand the case for a new trial, when the trial court can allow such amendments to be made to the pleadings as will be conducive to justice. We concur: BELCHER, C.; SEARLS, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed, and cause remanded for a new trial, with leave to the parties to amend their pleadings as they may be advised. (4 Cal. Unrep. 157) CHARLTON v. SOUTHERN PAC. R. CO. (No. 14,921.) (Supreme Court of California. Aug. 25, 1893.) QUIETING TITLE-POSSESSION. Mere possession of land within the limits of a grant to a railroad company, which had complied with the terms of the grant, but had not received a patent from the United States, will not enable such person to maintain an action to quiet title against the railroad company, where he does not show that he was qualified to take land under the pre-emption or homestead laws, or that he settled on it with the intention of filing a pre-emption or homestead claim. Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; William P. Wade, Judge. Action by G. G. Charlton against the Southern Pacific Railroad Company to quiet title. There was a judgment in favor of defendant, and plaintiff appeals. Affirmed. Conklin & Dunlap, for appellant. Jos. D. Redding and J. D. Bicknell, for respondent. BELCHER, C. The plaintiff commenced this action on September 30, 1890, to quiet his title as against the defendant to a tract of land in Los Angeles county, described as "fractional section 7, in township 2 north, range 16 west, San Bernardino base and meridian." The complaint alleged "that the plaintiff is now, and for a long time hitherto has been, in the possession of and is the owner (subject only to the paramount title of the United States) of that certain real property situate," etc. The answer denied the plaintiff's possession or ownership of the land described, subject only to the paramount |