the 13th day of January, 1891, and on that date presented said coupon to the secretary of said association, the said J. Alfred Lueders, and demanded payment thereof, and said association then and there refused to make payment of said sum of five hundred dollars provided for in said coupon. That said de

mand was made by plaintiff on said 13th day of January, 1891, upon said defendant association, at said city and county of San Francisco. That, at the time of said presentation and of said demand, there were ample funds and money in said endowment fund to fully pay said sum of five hundred dollars provided for in said coupon. That no part of said sum of five hundred dollars provided for in said coupon has been paid. Wherefore plaintiff prays judgment against the said defendant association for the sum of five hundred dollars, with interest and costs of suit, and that by said judgment the defendant association be directed to pay the same out of the said endowment fund, and for such other, further, or different relief as may be just."

The only issues upon which any point is made on this appeal arise from a denial by defendant that the plaintiff was a member of the "Pacific Endowment League," in good standing, on the 13th day of January, 1891. or at any time since, and the averment that he failed to pay 18 assessments levied by the league on January 2, 1891, and ipso facto forfeited and lost his right of membership in said league, and has ever since remained suspended. The court found for the plaintiff upon all the issues of fact, and gave judgment accordingly. The defendant appeals from the judgment, and from an order denying its motion for a new trial. The only point made by appellant is that the evidence does not justify the finding that the plaintiff was a member of the defendant association, in good standing, on January 13, 1891; and whether he was so or not depends solely upon the validity of the 18 assessments which, it is admitted, the plaintiff refused to pay. If those assessments were valid, his refusal to pay them effected a suspension of his good standing as a member of the league; otherwise, he was a member in good standing on January 13, 1891, and was then entitled to payment of the coupon set out in his complaint.

The defendant association or league was organized on March 8, 1888, and the plaintiff became a member thereof on March 9, 1888. On August 6, 1888, the defendant issued to plaintiff an "endowment certificate," by which it became obligated to pay to plaintiff $5,000 in 10 equal coupon installments, of $500 each, at the times and upon the condition expressed in the coupons. The first of said coupons matured January 13, 1891, and upon it this action was commenced, January 29, 1891. The by-laws of the league, as they were at the time plaintiff became a member, and remained until De

cember 28, 1889, do not add to or change the condition expressed in the coupon, namely, that plaintiff "shall be a member, in good standing, on the 13th day of January, 1891;" but they provide that failure to pay quarterly dues and assessments "suspends a member without further action." The quarterly dues are $1.50, and the regular authorized assessments are levied monthly according to fixed rates, dependent upon the age of the member assessed, the plaintiff's rate being $3.50 per month. Besides this regular monthly assessment, section 3 of article 9 of the bylaws provides: "When the demands on the endowment fund require, the levy of additional assessments shall be made." Professing to act by authority of this section, the directors, on January 1, 1891, 13 days before the coupon in suit matured, levied 18 special assessments, of $3.50 each, on plaintiff, all payable immediately, and addressed to plaintiff the following notice thereof: "San Francisco, Cal., January 1, 1891. The board of directors, by resolution duly passed, has levied on the above date special assessment No. 3, which is now due and payable on all certificates registered up to and including December 31, 1889. Under our present laws, no certificate is liable for a special assessment until after one year from the date of its registration; hence all certificates registered during the year 1890 are exempt from this special assessment No. 3. The special assessments are always of the same rate as the regular, and delinquent on the last day of the month for which they are called. To protect the interests of the membership, 18 extra assessments are hereby levied on all certificates of which the first coupon comes due within this month, payable, besides special No. 3, before the warrant for the matured coupon can be drawn. They will, however, after the issuance of the warrant, be credited on the 2d coupon as 18 regular monthly assessments. This will be continued on maturing coupons from month to month until repealed. By order of the 'board of directors. J. Alfred Lueders, Secretary. Bring this card. Thos. C. Hogan, 146 Silver St., City."

$

* *

Article 1 of the by-laws provides: "There shall be a board of nine directors, invested with full power and authority to enact laws for the government of the league." Article 4, as it existed from the organization of the league until December 28, 1889, provided that "coupons shall be paid on the day they mature by warrant on the treasurer, upon surrender of the couBut this article was amended December 28, 1889, by adding thereto the following: "Provided, the dues for the quarter, and the assessment or assessments levied for the month in which the coupon is payable, have been paid." At the same time, December 28, 1889, a new article (numbered 21) was adopted, as follows: "There shall be a reserve fund created by setting

pon."

aside from the receipts in the endowment fund such portion as shall be deemed necessary by the board of directors for the protection of the members and placed at interest." Section 6 of article 9 provides: "The proceeds from assessment and any accumulation of interest derived from investment of assessment moneys constitute the endowment fund, from which all payments for maturing coupons are made, and the endowment fund shall not be used for any other purpose whatsoever." Article 18 provides: "All moneys other than those mentioned in section 6 of article 9 go into the general fund which shall be used to defray the expenses of the league," this fund being composed of the initiation fees, ($5 each,) the quarterly dues of members, ($1.50 each, or $6 a year,) and certain fees and fines provided for. The above amendment of article 4 and the adoption of article 21 were evidently intended to authorize the creation of a reserve fund at the expense of the endowment fund, and thereby so reducing the latter as to justify the levying of the 18 or any number of additional special assessments, at the discretion of the board, all payable within the month in which coupons are to mature, as a condition of the payment of such coupons.

In this way it was proposed

to make "the endowment fund require the levy of additional assessments," in the sense of section 3 of article 9 above set out. In no other way could the board have made the endowment fund "require the levy of additional assessments" to meet the demands upon it for the payment of coupons maturing in the month of January, 1891, since it appears from an official report of the secretary, issued January 1, 1891, that the league then had in its treasury $83,034.80 properly and lawfully applicable to the payment of mature coupons, though the board had nominally divided it into three funds, as follows:

Reserve or guaranty fund.

Emergency fund.

Endowment fund proper.

$58,522 65

15,581 95. 8,930 20

$83,034 80

The same report of the secretary shows that $62,000 was disbursed from the endowment fund in payment of matured coupons during the year 1890, leaving the balance of $83,034.80; but it does not appear that any special assessment was levied upon the holders of the coupons paid during that year, the payment of which was enforced or required as a condition precedent to the payment of those coupons. J. Alfred Lueders, who was the secretary of defendant from its organization until May, 1891, and since its president, testified in explanation of the 18 special assessments, as follows: "The portion of the code of laws under which those 18 assessments were levied, (article 9, section 3, 4, and 5,) which gives the board of directors full power to levy

them, section 3 being the main section. At the time this coupon became due, in January, 1891, the endowment fund was not insolvent, but there were so many demands that would have to come in a future time that we had to look for those demands. It was not only our ambition to pay these coupons that matured in January, 1891, but to pay all that were contracted before that time and will mature later on. A coupon is only payable on the date of maturity, and is not a demand until it matures. It is merely a prospective demand until then. When we levied these special assessments, we had in view the other coupons that were to be paid, and we had to make provision in time to meet them when they would become due. As soon as these 18 assessments were paid, we would have turned over to Mr. Hogan $500 for the coupon. * * We levied the 18 assessments on the first coupon. After the first coupon had been collected by Mr. Hogan, he could have dropped the certificate. We levied them on the first coupon under our code of laws to make it legal. * It was a protection to the members that we levied these 18 assessments, in case Mr. Hogan would not continue his membership. $56 is all Mr. Hogan has paid in assessments outside of the dues which are for expenses, towards the $500. It was to devise ways and means by which to protect the endowment fund as much as possible against such a thing, as a member may drop out the first month, and it was not aimed at any particular member. Mr. Hogan paid in so little, it seemed only just to levy the 18 assessments. The Court: Why couldn't you have levied 500 assessments? If you could levy 18, why didn't you levy more? Answer. That would be highway robbery.

18 assessments levied on certificate which has only paid $56 is very just, and only justice to the other members. We had about $83,000 in bank to the credit of the endowment fund when the coupon matured on the 1st January, 1891, and the amount due for coupons maturing in that month was between $15,000 and $20,000; to speak more exactly, $23,500. The coupons to fall due in the following month, and those to mature, required a sum largely in excess of $83,000 to pay such coupons, and therefore it was a necessity to levy 18 assessments in January, 1891, to protect the payment of coupons immediately following." In his said report of January, 1891, the secretary further says: "This is a measure adopted for the equalization of payments, and for the protection of those members whose first coupon falls due at the later date; and, as the application for membership was made by every member for a certificate of $5,000, of which a coupon is only a part, this action is amply justified, and meets with the cordial approval of every well-meaning member." It is obvious that the defendant association was brought into existence for the sole benefit

of its promoters and officers, who were to feed upon the so-called "general fund" which was sacredly dedicated to them, and quite as obvious that it was constitutionally doomed to a short life; hence the doctoring to prolong the agony of its sickly existence. It is, however, the creature of contract, and must be governed by the law of contracts. Not being incorporated, its written articles of association constitute a contract by which the duties of its officers, the duties and obligations of its members among themselves, and the scope of its business are to be defined and regulated. Its articles of association bear to it the same relation that a charter bears to an incorporated society, and constitute its fundamental law, in accordance with which all subsequent by-laws, regulations, and amendments must be made. Nibl. Mut. Ben. Soc. § 1; Bac. Ben. Soc. §§ 37, 62; Austin v. Searing, 69 Amer. Dec. 670, and notes; Otto v. Benevolent Union, 75 Cal. 309, 17 Pac. Rep. 217. The obligation of this class of contracts for the payment of money, or for the security of any other right of property, is as sacred as those of any other contract, and a breach thereof will be remedied by the courts. Bac. Ben. Soc. §§ 61a, 105, 106, 107, and cases cited. The mere fact (conceding it to be such) that the articles of association constituting the contract do not operate equally upon the individual members confers no authority upon the directors to change or amend such articles for the purpose of "equalization of payments" or other burdens imposed by the original compact otherwise than authorized by the original articles. As such change or amendment would impair the obligation of the original contract, it could have been made only by consent of all members to be affected thereby; and such consent is not implied in article 1, which confers upon the board of directors power "to enact laws for the government of the league," because it must have been understood that this power was limited by the laws of the land with reference to which the article conferring it must be construed. Nibl. Mut. Ben. Soc. §§ 20, 24; Bac. Ben. Soc. § 84. Besides, "the equalization of payments" sought to be effected by the 18 assessments, according to the testimony of the president, could have been accomplished only by compelling each member to pay his own coupons as they matured, in addition to his quarterly dues, initiation fee, fines, etc., for the support of officers. This, though not highway robbbery, would have killed the institution immediately.

It is claimed that the levying of the 18 assessments was authorized by the original section 3 of article 9, because, it is said, "the demands on the endowment fund

required" such additional assessments; yet it appears that the amount of the coupons falling due in January, 1891, was only $23,500, and that there was then in the endowment fund $83,000, for there was no provision in the original articles for creating a reserve fund from the receipts of the endowment fund, nor for transferring any part of the endowment fund to any other fund, nor any provision in either the original or amended articles for an "emergency fund;" and therefore the alleged transfer of $74,104 from the endowment fund to the supposed reserve and emergency funds had no actual existence. Indeed, there is no evidence of any resolution of the board to that effect. Besides, section 6 of article 9 provides that the endowment fund shall not be used for any other purpose than the payment of matured coupons. For what purpose could any part of the endowment fund have been reserved? The placing of such a portion of it as was not immediately needed at interest was no reservation of it from the purpose to which it was exclusively dedicated. Nor is it easy to conceive of any purpose or occasion for any "emergency fund." All possible demands upon the endowment fund were payable in definite sums at fixed times. There was no chance for any unexpected valid demand upon that fund. It follows that there was no legal necessity for levying the 18 special assessments on January 1, 1891, and therefore they were invalid. Thomas v. Whallen, 31 Barb. 172; Insurance Co. v. Guse, 49 Mo. 332; Nibl. Mut. Ben. Soc. § 277. In levying assessments the directors act ministerially, and not judicially, and therefore no presumption arises in favor of their legality or regularity, (Nibl. Mut. Ben. Soc. § 280; Bac. Ben. Soc. § 377;) nor can assessments be made for anticipated losses unless provision therefor is made in the articles of association, (Rosenberger v. Insurance Co., 87 Pa. St. 207; Crossman v. Association, 143 Mass. 435, 9 N. E. Rep. 753.) There are other probably valid objections to the 18 special assessments, but the foregoing are sufficient to show them to have been invalid. Being invalid, the refusal of the plaintiff to pay them did not have the alleged effect of suspending him from good standing as a member of the league. I think the judgment and order should be affirmed.

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

FITZGERALD and MCFARLAND, JJ. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

DE HAVEN, J. I concur in the judgment.

(99 Cal. 345) SAN JOAQUIN LAND & WATER CO. v. WEST et al. (No. 18,113.)

(Supreme Court of California. Aug. 18, 1893.) JUDGMENT-ENTRY-AMENDMENT-INTEREST.

1. Where judgment is entered otherwise than authorized by the decision, it may be amended by the court.

2. As a money judgment draws interest at 7 per cent., it is properly entered for the amount recovered with interest at such rate from date of judgment, though the decision properly contains no provision therefor.

Department 1. Appeal from superior court, San Joaquin county; Joseph H. Budd, Judge. Action by the San Joaquin Land & Water Company against F. M. West and others. From an order refusing to amend the judgment, plaintiff's appeal. Affirmed.

E. S. Pillsbury and W. L. Dudley, for appellants. Baldwin & Campbell and S. D. Woods, for respondent.

GAROUTTE, J. The present action involved the title and right of possession to a certain fund of money, which was in the custody of the court pending the litigation. Upon the submission of the case the court filed its findings of fact and conclusions of law, and ordered judgment to be entered in accordance therewith. The conclusions of law were: "Plaintiff is entitled to have and recover a judgment against the defendants Beecher and Gray for the sum of $35,861.25, together with its costs in this action." Subsequently defendants appealed from the judg ment and an order denying them a new trial, the judgment and order were affirmed, and the aforesaid sum of money was paid to plaintiff. Thereafter it came to the notice of appellants that the judgment entered included an additional sum as interest, and a motion was made to the court to amend and correct the judgment as entered, "by striking out so much thereof as reads as follows: 'With interest thereon at the rate of seven per cent. per annum from the date hereof until paid,'-upon the ground that such portion of said judgment was inserted therein by misprision, inadvertence, and mistake, and that the same is not meant or intended to form a part of, or be inserted in, said judgment; that said judgment is not supported or warranted, but, on the contrary, is expressly contrary and in direct opposition to the decision in writing and the findings and conclusions of law heretofore made and filed in this action on the 4th day of August, 1890." The court made an order denying the motion, upon the sole ground that it had no jurisdiction to make said amendment, and this appeal is prosecuted from that order.

Under section 632 of the Code of Civil Procedure, if the trial of a question of fact is involved, the decision of the court must be given in writing and filed with the clerk, and section 633 requires that in such deci

sion the facts found and the conclusions of law must be separately stated, and the juágment upon the decision must be entered accordingly. The "decision" of the court referred to in these sections, when filed, amounts in law to a rendition of the judgment. As was said in Crim v. Kessing, 89 Cal. 478, 26 Pac. Rep. 1074: "This was the rendition of the judgment, which the clerk could thereafter at any time enter at length in the records of the court. The entry of the judgment after it had been rendered by the court is but the ministerial act of the clerk. The judgment when entered becomes the record of what the court has determined, and then becomes as binding upon the parties as if entered immediately upon its rendition. The rendition of a judgment is a judicial act. Its entering upon the record is merely ministerial." Freem. Judgm. § 381. See, also, In re Cook's Estate, 77 Cal. 227, 17 Pac. Rep. 923, and 19 Pac. Rep. 431; and Broder v. Conklin, (Cal.) 33 Pac. Rep. 211. In the present case, if the clerk has been guilty of mistake by entering a judgment not authorized by the "decision" of the court, such mistake can be corrected by the course here adopted, for the error will be apparent from the face of the record, and the rule is universal that when a mistake is made in the entry of a judgment, and that fact is plainly apparent from the record itself, such mistake may be rectified at any time; and this rule arises by reason of the inherent power of the court over its own proceedings. It was said in Egan v. Egan, 90 Cal. 21, 27 Pac. Rep. 22: "Courts have the power at all times to allow amendments to judgments, for the purpose of having the judgment as entered express that which was rendered, so that the record will contain the actual decision of the court; and such amendments can be made after the expiration of six months from the entry of the judgment. Where the clerk fails to enter judgment as it was pronounced, the court has always the power to correct the matter, and to order the proper entry to be made. Clerical misprisions can be corrected at any time by an order of the court, but judicial errors can be remedied only through a motion for a new trial or on appeal." Neither does the fact that the judgment has been affirmed upon appeal by this court conclude appellants' right to have it conform to the truth. Rousset v. Boyle, 45 Cal. 64, was that kind of a case, and the decision of the court upon that question leaves nothing more to be said.

The foregoing principles of law being established, let us examine the facts, to see wherein the mistake in the entry of judgment exists. The court rendered a judg ment against defendant for a large sum of money and costs, and such judgment was full and complete, for it covered the whole subject-matter of litigation. No judgment for interest was asked in the complaint, and no interest was awarded. There was no

issue in the case as to the rights of plaintiff to have interest upon the judgment after it was rendered. No such issue could possibly arise, and consequently the "decision" of the court should not contain any such adjudication. It follows that the mere fact of the entry of the interest clause in the judgment, without such authority being found in the decision of the court, in no way proves such entry to be a clerical mistake. Even if such clause was stricken from the judgment entered, it is not clear that execution for interest would not run. But, aside from this, the judgment was a pure money judg ment, and the law says such judgment draws interest at the rate of 7 per cent. per annum. We think it was the duty of the clerk to enter the judgment exactly as it was entered, and his insertion of the interest clause therein was an exercise of a ministerial duty, under the law. It may be further suggested that we see nothing but fairness and equity in charging these defendants with interest upon the judgment. For many months they prevented plaintiff from obtaining possession of its money, and the law declares that legal interest is the true measure of damages in such a case.

For the foregoing reasons let the order be affirmed.

We concur: BEATTY, C. J.; HARRISON, J.

(99 Cal. 311)

DORAN v. DORAN. (No. 15,090.) (Supreme Court of California. Aug. 16, 1893.) TRUSTS-LANDS-GIFTS CAUSA MORTIS.

1. There can be no trust in land conveyed by deed absolute without fraud; Civil Code, § 852, providing that such a trust can only be created by writing.

2. Conceding that the assignment of a bank book was a gift causa mortis, the gift was revoked where the assignor, a few minutes before his death, told the assignee to go to the bank, get the money, and bring it to him, so that, the assignor having died intestate before the return of the assignee, the assignee would hold the funds in trust for the assignor's heirs. Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; Walter H. Levy, Judge. Action by Margaret Doran against James Doran to have a trust declared in land and money. Judgment for defendant. Modified. James Gartlan, for appellant. Robert Y. Countryman, for respondent.

BELCHER, C. On the 30th day of June, 1887, John Doran was the owner of a certain lot of land in the city of San Francisco, and of $770, money on deposit to his credit in the Hibernia Savings & Loan Society of San Francisco. On that day he executed to the defendant, James Doran, a deed of the lot and an assignment in writing of the pass book showing the amount to his credit in the said bank. John and James were brothers, and v.33P.no.18-59

the sons of the plaintiff. The plaintiff seeks by this action to have a trust declared in her favor as to the real and personal property so transferred. The complaint alleges, in substance, that John was moved and induced to convey the said lot and assign the said bank account to the defendant solely by reason of the confidence he had in defendant, and because of the promise defendant then made to reconvey the lot upon request to his grantor, and to hold for his use the money, and the further promise, in the event of John's death, to convey the lot to plaintiff, and to pay to her so much of the said money as might remain in his (defendant's) hands; that John died on the 5th day of July, 1887, before any reconveyance of the land had been made, and leaving intact in defendant's hands the whole sum of money transferred to him; and that plaintiff had demanded of defendant that he convey to her the said land, and pay to her the said money, but he refused, and still refuses, to do so, except that he had paid to her $100 of the money. Wherefore judgment is asked "that he, defendant, be declared a trustee for plaintiff of said land, and for a conveyance thereof to her; that he, defendant, be declared a trustee for plaintiff in the sum of $670, and that he be directed to pay such sum to her, together with the interest found due, and for costs of suit." The answer to the complaint was a general denial. The case was tried by the court, and the findings were, in effect, that the said conveyance and assignment were absolute, and were not made by reason of any confidence. John had in defendant, nor upon any promise of defendant to reconvey the lot to John, or to hold the money for his use, nor upon any promise, in the event of John's death, to convey the lot or pay over any part of the money to the plaintiff. Judgment was accordingly entered that plaintiff take nothing by the action, and that defendant recover from her his costs and disbursements therein. From this judgment, and an order denying her motion for new trial, the plaintiff appeals.

The only point made for reversal which need be noticed is that the findings were not justified by the evidence. The proceedings at the trial are briefly stated in the record as follows: Plaintiff introduced in evidence the deed and pass book in question; the deed expressing a nominal consideration, and the pass book, numbered 108,800, showing a balance to the credit of the depositor of $770. "Proof was then made that on June 30, 1887, John Doran was lying dangerously ill at St. Mary's Hospital, San Francisco, and expressed a desire to settle his affairs; that the sick man knew that his mother, Margaret Doran, the plaintiff, was his heir at law; that, for the purpose of avoiding the expense and delay of probate proceedings, John determined to transfer all his property in trust; that he was aware of the risk he ran in making such transfer, but declared