would not recognize her or receive rents from her, continued month by month to tender the rent to plaintiff at the time it fell due under the terms of the lease, during the entire period in which the rent sued for accrued. Plaintiff invariably refused to accept it from her, saying that he would receive rents only from Gloster, because he was in possession. E. A. Billings did not, when plaintiff refused to receive her money in payment of rents, deposit the same or any of it in a bank or elsewhere, in compliance with the provisions of section 1500, Civil Code.

Motion for a new trial was made by defendants upon several grounds, including the claim that the findings are not sustained by the evidence, under which head many specifications are made. Also upon the ground that the judgment upon the findings should have been for defendants. One specification in respect to the insufficiency of the evidence was the finding to the effect that plaintiff, when he received rents from Billings as agent, and from the Gloster & Davis Implement Company, believed that Davis was a member of that company, and that Billings was agent of the company or of Gloster. It cannot be denied that the evidence on this point is conflicting. Upon the theory adopted by counsel on both sides, and by the court, it was most material, for it tended to show that the plaintiff had not recognized the lease as continuing after knowledge of the second assignment. Indeed, the findings consist solely of probative facts, except as to finding No. 1, to the effect that all the allegations of the complaint are true. This, therefore, stands in the place of a finding that E. A. Billings, when she tendered the rent, was not the owner of the term. Upon the theory adopted by all parties, this was the turning point in the case. Appellant's counsel say it is but a probative fact, tending to establish the ultimate fact, that plaintiff did not intend by the recept of rent to release the sureties; but there was no issue in the case as to whether plaintiff intended to release the sureties. It was not claimed that he did, nor did it matter. It seems to me that, if he accepted rent from any one eo nomine, as he admits he did after knowledge of the second assignment, it was enough; but that was not the view adopted below. As we must presume, therefore, that the court below concluded that one of the findings upon which judgment was based was unsupported by the evidence, and has granted a new trial, the order ought not to be reversed here, at least unless we are convinced that the other findings will support the judgment.

As the plaintiff did not attempt to forfeit the lease, but, on the contrary, affirmed its continuance by bringing this suit to recover rents which accrued under it, he could not claim that the second assignee acquired nothing by the assignment. The lessor did

not have the option of declaring the assignment void, but it was his privilege, if he desired to avail himself of it, to forfeit the lease, and end the term; that is, if the condition continued after the first assignment. Whether it was renewed by the first assignment, made with the consent of the landlord, we do not, therefore, inquire. The lease, as we have seen, contained both a condition that the term might be forfeited if assigned without consent and a covenant not to assign. But an assignment in violation of the covenant was not absolutely void. If so, it would not be also a condition, for that would be the creation of an estate conditioned upon an impossible event. But, if authority is needed on such a proposition, it can be had. The point was expressly adjudged in Paul v. Nurse, 8 Barn. & C. 486. The effect of this decision is thus set out in Smith, Landl. & Ten. 117: "The landlord sued the assignee of the lessee for nonpayment of rent. The defendant pleaded that before the rent became due he had assigned to a third person, and to this the plaintiff replied that there was a covenant in the lease by which the lessee had covenanted for himself, his executors, administrators, and assigns, not to assign without the consent of the lessor, and that no consent had been given. It was held that this replication was bad on demurrer, since the covenant by the lessee did not render the assignment by the assignee void, and the liability of the defendant as assignee was at an end when he parted with the estate. The court intimated that the landlord's remedy might be on the covenant not to assign, meaning apparently that the lessee might be sued on it in respect of the assignment by the assignee, if this assignment could be brought within the terms of the covenant, by which the lessee only covenanted for himself, his executors, administrators, and assigns, that he, his executors or administrators, would not assign." In Webster v. Nichols, 104 Ill. 160, it is said: "The clause in the lease providing that the premises shall not be assigned without the written consent of the lessors is clearly for the benefit of the lessors. It does not render the assignment, when otherwise made, absolutely void, but voidable only, at the option of the lessors or their representatives. But even if the lessors, instead of here attempting, as they now are, to enforce rights under an assignment otherwise made, were attempting to have such an assignment declared void, they could not succeed. They have knowingly accepted rent from Abiah G. Webster since she has been in possession as purchaser from Gage, and this concludes them, for it is well settled that any act done by a landlord knowing of a cause of forfeiture by his tenant, affirming the existence of the lease, and recognizing the lessee as his tenant, is a waiver of such forfeiture.'" Although in that case the court

uses the expression that the landlord has the option to avoid the assignment, the whole quotation shows that the meaning is that the landlord may end the term. The question was whether the assignment was valid. The landlord not only refused to consent to the assignment, but refused to recognize the assignees as her tenants, and received rent from them only as subtenants. In Den v. Post, 25 N. J. Law, 289, the tenant having assigned in violation of such a covenant, the landlord re-entered and took possession. There was no stipulation that the landlord might so enter on the breach of the covenant. It was held that the assignee could recover possession from the landlord, who contended that the assignment was void. The court said: "No ejectment can be maintained by the landlord for a mere breach of the covenant not coupled with a proviso for a re-entry. His only remedy would be an action for breach of covenant. Neither the lease nor the assignment is avoided by reason of the breach of covenant." Wilson v. Phillips, 2 Bing. 13; Platt, Cov. 424.

Plaintiff's counsel do not really contend that the assignment was void, and did not pass the term. Their contention seems to be, although not so expressed, that the sureties cannot rely upon an offer to perform, made by one who could have no rights under the lease save by a violation of its covenants. But the first question here is, has there been a failure on the part of the tenant to perform the covenant to pay rent? If E. A. Billings was the legal owner of the term, she was the proper person to pay the rent, and if her offer was performance there has been no breach of that condition or covenant. Has there been then such breach of the covenant to pay rent as will make he sureties liable? Admitting that E. A. Billings was the owner of the term, (and we have concluded she was,) there seems hardly room for doubt upon this point. Leaving out of view any right plaintiff may have had to avoid the lease for the violation of the covenant not to assign, could he have ousted the tenant because she did not de posit the money in a bank, and notify him of the fact? No one, I think, would have the hardihood to contend that he could. If he could not, then it must follow that there has been no breach of the covenant to pay rent, and the sureties are not liable. are not now treating of a tender which would extinguish a debt, nor inquiring whether there has been such a tender of money due as will relieve sureties from liability, but whether there has been a breach of a covenant. Plaintiff's contention is founded upon the wording of our Code, which he claims has changed the commonlaw rule. It is admitted that, independently of the lease, an offer to pay and a refusal by the creditor will release the sureties, although the tender were not kept

We

good. Keeping this common-law rule in mind, and that the Code is, in general, intended to declare existing rules, I think it plain that the Code has not changed the rule in this respect. Section 2839, Civil Code, is as follows: "Performance of the principal obligation, or an offer of such performance, duly made, as provided in this Code, exonerates a surety." It is claimed that the phrase "duly made as provided in this Code," refers to section 1500, in regard to tender, and necessitates a deposit, or it will not amount to an offer. Section 1500 does not provide what shall be sufficient as an offer of performance of a contract. It is an advance upon the common-law rule that a debtor must keep his offer good, but cannot extinguish the obligation in providing a mode for the absolute extinguishment of the debt. The other sections of the chapter define what shall constitute such performance or offer to perform as will prevent the person making the offer from be ing in default in the performance of his contract, and will give a right of action in case performance is not accepted. But section 1500 itself, read in the light of the prevailing rule, clearly shows that the deposit is no part of the offer. The offer shal! have a certain effect if the deposit is made. This is made more obvious by the other provisions in regard to an offer. Section 1502, for instance, provides that the title to the thing offered passes to the creditor if the debtor at the time signifies that such was his intention. Section 1504: The offer of payment duly made, though the title of the thing offered be not transferred, stops the running of interest. Section 1511: As to what will excuse an offer. Certainly the existence of such reasons would not extinguish an obligation to pay money. Section 1515: A refusal is equivalent to an offer of performance. It could not be equiv alent to an offer followed by a deposit as provided in section 1500. Even if the obligation of defendants must be regarded as that of sureties for the payment of a debt, still I think the tender sufficient to discharge the sureties. I recommend that the

he so held it; that such dispute was settled; and the assignment of claimants' rights to plaintiff. Defendant's answer admitted receipt of the money, but denied plaintiff's other averments. Defendant also pleaded a former judgment on the same cause of action. Plaintiff put in evidence defendant's written acknowledgment and the assignments to himself, and one of his assignors testified that defendant had not paid the money. Defendant did not put in evidence any memorandum of settlement, nor the judgment pleaded by him. admitted his signature to the acknowledgment, but said that he had no memory of the matter, and he failed to contradict any of plaintiff's testimony. Held, that a verdict for defendant was not justified.

He

2. A certificate that the maker thereof holds certain money to abide settlement of disputes as to its ownership creates an express trust, with no definite time fixed for its termination by payment, and hence limitations will not run against a claim on such certificate until the true owner has been ascertained, and a demand made by one showing a right to the money.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. P. Hoge, Judge.

Action by H. M. Petersen against Joseph W. Taylor. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed.

Nagle & Nagle, for appellant. J. C. Bates, for respondent.

December, 1887. The first count on the second cause of action is for moneys had and received, amounting to $655, and the second count is for the same sum, alleging the facts substantially as follows: That on July 2, 1884, defendant collected from the city of San Francisco said sum on two certain judgments, one in favor of B. Bonnett, and the other of C. H. Parker; that defendant agreed to hold said money until certain disputes should be settled between B. Bonnett and Eli Bonnett as to which was entitled to the money, whereupon defendant signed and delivered to Eli Bonnett, for the benefit of all parties, the following paper: "This is to certify that I have the sum of $655, collected from the city and county of San Francisco in the suits of B. Bonnett and C. H. Parker against the city and county of San Francisco, claimed by Eli Bonnett, but attached in the suits of Petersen vs. Bonnett, as the money of B. Bonnett, to abide settlement or suit against me to determine the ownership of said sum. [Signed] Jos. W. Taylor. July 2, 1884." It was further alleged that all disputes about the ownership had been settled, and all claims of Eli and B. Bonnett thereto had been sold and assigned to plaintiff, and on or about December 1, 1887, plaintiff

notified defendant thereof, and demanded payment. To the first cause of action the defendant answered, denying the facts alleged, and pleaded the statute of limitations, and made a like answer and plea to the first count of the second cause of action. To the second count he answered, admitting that on July 2, 1884, he collected in his own right in the cases mentioned $12,000, but denied that he agreed to hold the $655 until certain or any disputes should be settled between the Bonnetts; admitted that he signed and delivered the writing set forth in the complaint; alleged that all disputes concerning the same were settled July 8, 1884, by release in writing, as follows: "We have this day settled all our affairs, and the judgments in the actions of B. Bonnett vs. The City and County of San Francisco, and C. H. Parker vs. The City and County of San Francisco, belong to Jos. W. Taylor. [Signed] B. Bonnett. Eli Bonnett. Joseph W. Taylor." He also denied the assignment of the claims of said money to plaintiff, or that anything was due under it, and pleaded the statute of limitations. For a separate defense defendant pleaded two several judgments in his favor against the plaintiff in actions brought by the plaintiff against him upon the same cause of action. The cause was tried without a jury, findings were waived, and judgment went in favor of defendant for costs.

Appellant contends that the evidence does not justify the decision, specifying several particulars. As to the first cause of action the testimony was confused, indefinite, and conflicting. We cannot say that the conclusion reached by the court as to that cause of action is not justified by the evidence. As to the remaining cause of action we come to the opposite conclusion. Plaintiff put in evidence the paper set out in the complaint, and the several assignments from Eli and B. Bonnett indorsed thereon, showing that he had the sole ownership thereof, and of all moneys mentioned therein. This, of itself, made a prima facie case for the plaintiff: but, in addition, B. Bonnett (called by the plaintiff) testified to the facts and circumstances of the transaction, and that said sum had not been paid. The defendant did not put in evidence the memorandum of settlement made by him with the Bonnetts, nor give any testimony tending to show that it included the money in question, nor did he put in evidence either of the judgments pleaded in bar of the action. These averments in the answer are deemed denied, and the burden was on defendant to prove them. Neither the answer nor the copy of any paper therein is evidence for any purpose. The defendant was examined as a witness in his own behalf, and admitted his signature to the paper set out in the complaint, and said, in substance, that he knew nothing about the suits mentioned in it; did not remember that he had anything to do with them, or

whether the money was attached in his nands. This was all the testimony on the part of the defendant as to either count of the second cause of action. He did not in any manner refer to the testimony of B. Bonnett, nor contradict nor explain any of the facts or circumstances testified to by him, and which, with the written instrument referred to, was quite sufficient to require a judgment for the plaintiff. Nor does it appear that this cause of action was barred by the statute. The evidence discloses the fact that a contract for street work was assigned to defendant by Eli Bonnett, upon which defendant had advanced some $4,000; and when the money was collected by defendant there was a balance in his hands of about $3,500. An attachment had been served on $655 of it, based upon a claim that it, the money attached, belonged to B. Bounett. Defendant paid Eli Bonnett the balance in his hands except $655, and executed the paper set out in the complaint. This money was retained by defendant with the consent of Eli Bonnett, and, as the testimony shows, actually belonged to him, though claimed by Petersen, the plaintiff here, as well as the defendant, to belong to B. Bonnett, against whom the attachment was issued. Whether the circumstances under which defendant originally received the money constituted bim & trustee or not, the instrument signed by him constituted an express trust, with no definite time fixed for its termination by payment. The statute therefore did not run until notice of the settlement and demand of payment. Wright v. Ross, 36 Cal. 433. By the terms of the instrument he was a mere custodian of the money until the true owner was ascertained, and not until a demand made by one who showed a right to the money was he in default; nor is he chargeable with interest prior to the date of the demand and refusal. The judgment and order appealed from should be reversed, and a new trial granted as to the second and third causes of action only.

We concur: SEARLS, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and a new trial is granted as to the second and third causes of action only.

(4 Cal. Unrep. 8)

APPLEBY v. JANSEN'S HEIRS et al. (No. 15,121.)

(Supreme Court of California. June 7, 1893.) Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco.

Action by William Appleby against the heirs and assigns of Charles J. Jansen, the German Savings & Loan Society, and others, to set aside a sale of a leasehold interest

claimed by plaintiff in certain land, and for an accounting as to the rents and profits. From a judgment for defendants, entered on sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Henry I. Kowalsky, for appellant. Jarboe & Jarboe and Robert H. Countryman, for respondents.

SEARLS, C. This is an appeal from a final judgment in favor of the defendant the German Savings & Loan Society. The action is brought for the purpose of setting aside a sale of a leasehold interest held by the plaintiff in a lot of land situate in San Francisco, and for an accounting as to the rents and profits. The sale sought to be set aside was made January 24, 1876. Plaintiff claims that he was defrauded into making the sale. The only defendant served, so far as appears from the record, was the German Savings & Loan Society, which defendant demurred to the complaint upon the grounds (1) that the complaint did not constitute a cause of action against said defendant, etc.; (2) that plaintiff's cause of action was barred by the statute of limitations, using apt terms to designate the sections of the statute under which the bar occurred. The demurrer was sustained, and judgment entered in favor of defendant. The complaint was probably prepared by the plaintiff, as he did not appear by attorney. To quote from the pleading, for the purpose of showing its utter insufficiency, would seem unkind to plaintiff, and I shall content myself with saying (1) it does not state a cause of action against the defendant; (2) the complaint shows upon its face that the cause of action is barred by lapse of time,-for which reasons the judgment appealed from should be affirmed.

PER CURIAM. For the reasons given in the foregoing opinion the judgment appealed from is affirmed.

FISHER v. HOPKINS. (No. 13,171.) (Supreme Court of California. June 8, 1893.) REVIEW ON APPEAL-SUFFICIENCY OF EVIDENCE.. Where, on appeal, the evidence is found sufficient to justify the findings of the trial court, the judgment of that court will not be disturbed.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; James G. Maguire, 'Judge.

Action by Ann Fisher against Peter Hopkins for the conversion of certain household furniture. Judgment for plaintiff. Defendant appeals. Affirmed.

James F. Smith, for appellant. T. J. Crowley and P. J. Morgan, for respondent.

VANCLIEF, C. It is alleged in the complaint that while plaintiff was the owner, and entitled to the possession, of certain

personal property, (household furniture,) the defendant wrongfully converted the same to his own use, to the damage of the plaintiff in the sum of $2,000. The defendant denies the alleged title of the plaintiff, and justifies the taking and alleged conversion of the property under writs of attachment and execution against one Minerva Button, issued to him as sheriff, alleging that the furniture in question was the property of Minerva Button. The case was tried by the court, and judgment rendered in favor of the plaintiff for $951.95 and costs. The defendant appeals from the judgment, and from an order denying his motion for a new trial.

The only grounds upon which a reversal of the order and judgment is asked are that the findings of fact are not justified by the evidence. The plaintiff claims to derive her title to the property from Minerva Button, through an absolute bill of sale and delivery of possession from Mrs. Button to Josiah Lean, Robert Peoples, and Lydia Peoples, executed prior to the issuance of the writs by virtue of which the defendant took and sold the property, and a bill of sale from Lean and Peoples to the plaintiff. The findings excepted to relate principally to the considerations paid for the bills of sale, and to the questions whether there was an actual and immediate delivery of the property, followed by a continuous change of possession. After a careful examination of the 200 pages of conflicting evidence contained in the statement on motion for a new trial, I think, under the well-settled rule in such cases, that the evidence is sufficient to justify all the findings, and that the judgment and order should be affirmeu.

We concur: HAYNES, C.; TEMPLE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(98 Cal. 481)

COWGILL v. DINWIDDIE et al. 161.)

(No. 15,

June 8, 1893.) (Supreme Court of California. CLAIMS AGAINST DECEDENT'S ESTATE-TIME FOR BRINGING SUIT.

Code Civil Proc. § 1496, requires an executor to indorse on a claim its acceptance or rejection, and, if not done within 10 days, provides that the neglect may, "at the option of the claimant," be considered a rejection. Plaintiff's claim was presented January 16, 1891. Her attorneys were told that nothing had been done with it, and on February 7, 1891, were told they could consider it rejected. It was in fact indorsed "Rejected" February 2, 1891, though the fact was concealed from plaintiff. Held, that plaintiff had the right to consider the claim rejected February 7, 1891, and an action thereon within three months from that date was within Code Civil Proc. § 1498, providing for a suit on a claim within three months from its rejection.

Commissioners' decision. Department 1. Appeal from superior court, Sonoma county; S. K. Dougherty, Judge.

Action by Louise Cowgill against J. L. Dinwiddie and Daniel Brown, executors of Thomas Rochford, deceased, to recover on a claim against decedent. Judgment for plaintiff. Defendants appeal. Affirmed.

Haskell & Meyer, for appellants. Lippitt & Lippitt, for respondent.

SEARLS, C. Appeal from a judgment in favor of plaintiff, and from an order denying defendants' motion for a new trial. The action was brought to recover $1,000 upon an instrument in writing executed by Thomas Rochford, deceased, on the 3d day of December, 1886, to be paid by his execu tors after his death, to the plaintiff, provided said sum is not left for her use in his last will. The demand was presented to the executors January 16, 1891, and, as plaintiff avers, rejected on the 7th day of February, 1891. Suit was brought within three months thereafter. The answer denies that the claim was rejected on the 7th day of February, 1891, but avers that it was so rejected February 2, 1891, and claims that the action was brought within three months thereafter. The principal contention at the trial seems to have been over the question of the rejection of the claim. The errors assigned by appellants are as follows: (1) That the findings in this case are contrary to the issues and admissions of the pleadings; (2) that the findings do not respond to all the issues; (3) that the findings contain evidence, instead of ultimate facts. The three objections are in their essential elements so blended that they may properly be considered together, and the findings of fact which illustrate them may be summarized in part, and stated at length, where deemed necessary, as follows: (1) Notice to creditors was given by defendants, as executors, September 29, 1890, in which such creditors were directed to present their claims to them at the law office of Haskell & Meyer, etc., within 10 months. (2) Plaintiff's claim was presented on January 16, 1891, by her attorneys. (3) That thereafter plaintiff's attorneys called several times, and made inquiry as to action by the executors on the claim, and were told that no action had been taken thereon. (4) "That on the 7th day of February, 1891, Frank K. Lippitt, one of the attorneys for the plaintiff, called again at the office of said Haskell & Meyer to learn what action had been taken by said executors, and was told by one of the attorneys for said executors that he might consider the claim rejected on that day, and that plaintiff commenced this action within three months from the said 7th day of February, 1891." (5) "That on said 7th day of February, 1891, the said attorneys