Department 1. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge.

Action by John W. McDonald against Michael Conniff and others to enforce the lien of a street assessment. There was a judgment in favor of defendants, and plaintiff appeals. Reversed.

J. C. Bates, for appellant. Horace W. Philbrook, for respondents.

HARRISON, J. Action to foreclose a lien of a street assessment in the city and county of San Francisco. At the trial the plaintiff offered in evidence the assessment, diagram, warrant, certificate of engineer, with the affidavit of demand and nonpayment indorsed upon the warrant, to the introduction of which the defendants objected upon the grounds "that the same were immaterial, irrelevant, and incompetent, because the assessment is void on its face, as only a part of the lots on Tenth street, between Folsom and Harrison streets, were assessed; and also that the diagram did not show on which side of Tenth street, or what particular part of Tenth street, the work for which the asessment was made, or the relative location of the lot of defendant Conniff assessed to the work done, or any part thereof; also, because no foundation had been laid for introducing the diagrams, or any of them, offered, no prior proceeding having been shown, authorizing the assessment, diagram, warrant, or certificate, or any of them; also, because the item in the assessment of $25.83 engineering is unauthorized and illegal.” The court sustained the objection, and excluded the evidence. Judgment of nonsuit was thereupon entered, and the plaintiff has appealed therefrom.

1. Section 2 of the act under which the proceedings were had (St. 1889, p. 157) authorizes the city council to order the improvement of "the whole or any portion, either in length or width," of the streets of the city; and in subdivision 11 of section 7 the council is authorized, in its order for any of the work mentioned in the act, "to except therefrom any of said work already done upon the street to the official grade." Subdivision 8 of section 7 of the act provides that "where any work * * is done on either or both sides of the center line of any street for one block or less, and further work opposite to the work of the same class already done is ordered to be done to complete the unimproved portion of said street, the assessment to cover the total expense of said work so ordered shall be made upon the lots or portions of the lots only fronting the portions of the work so ordered." It thus appears that authority is given to the city council, in certain cases, to order the improvement of only a portion of a street lying between two main street crossings, and that such improvement may

be confined to a portion of the street upon one side of its middle line, and also that, when only such portion of a street is to be improved, the assessment therefor must be upon only the lots which front the portions of the work ordered. In the present case the improvement ordered by the supervisors, and for which the assessment was made, was "that granite curbs be laid on Tenth street, between Folsom and Harrison streets, where not already laid; that the roadway thereof be paved with basalt blocks where not already so paved; and that granite curbs and plank sidewalks be laid on angular corners of the intersection of Sheridan and Tenth streets, and that granite cross-walks be laid across said intersection." It was for the supervisors to determine what portion of Tenth street they would order improved, and if, in fact, prior to the passing of the resolution of intention, any portion of the street had been so improved, it was the duty of the superintendent to make the assessment for the work done under the contract upon only the lots "fronting upon the work so ordered," and to exclude therefrom the lots "fronting upon said excepted work already done." If the superintendent, in making such assessment, included lots which ought not to have been assessed, or failed to include those which should have been assessed, the remedy of the party aggrieved was by an appeal to the supervisors for a correction of the assessment. Inasmuch, therefore, as there are instances in which an assessment is authorized to be made upon only a portion of the lots fronting upon a street on which an improvement has been ordered, it cannot be said that the assessment in question is void upon its face.

2. The objection that the diagram does not show "on which side of Tenth street or what particular part of Tenth street the work for which the assessment was made," is not clear. The grammatical construction of the objection is that the diagram does not show the work for which the assessment was made, and it is sufficient to say that there is no requirement in the statute that the "work" shall be shown or even designated upon the diagram; but, if it be construed as an objection that the diagram does not show upon what portion of Tenth street the work was done, it may also be said that the statute does not make this requirement. The provision of the statute is that a diagram shall be attached to the assessment, "exhibiting each street on which any work has been done, and showing the relative location of each lot to the work done, numbered to correspond with the numbers in the assessments, and showing the number of feet fronting, or number of lots assessed for said work contracted for and performed." The diagram is only auxiliary to the assessment, and is intended to be merely a map exhibiting "each street" upon which the work has been done, and not the

particular portion of the street in which the work was done. The requirement that it shall show "the relative location of each lot assessed to the work done" is satisfied if it shows their location in relation to the "exhibited" street upon which the work was done. Taken in connection with the description of the work for which the assessment was made, it can then be seen from an inspection whether any of the lots assessed are so located as to be liable for any part of the expense of the work, and if, for any reason, a particular lot ought not to have been assessed for that work, the error can be corrected upon application. to the proper tribunal. The diagram is not intrinsically invalid unless the lots shown thereon are so located that they could not, under any circumstances, be made liable for a portion of the expense of the work. It is not essential to the validity of an assessment that the lots assessed should front upon the entire portion of the street exhibited upon the diagram. In the case of an assessment for work done upon main street crossings, or at the termination of one street in another, the street crossing or the termination is required to be exhibited on the diagram, while the lots to be assessed front upon portions of the streets on which none of the work was done, and the diagram is to show their relative location to the work done, by showing that they are within the quarter blocks or territory liable to be assessed. The diagram in the present case sufficiently complies with the statute. It exhibits Tenth street as the street upon which the work was done, and it also delineates the several lots assessed, and shows that each of the lots assessed fronts upon Tentli street, and that its location is within the territory liable to be assessed for work done upon Tenth street.

3. The statute makes the assessment, with the other documents offered by the plaintiff, prima facie evidence of the regularity and correctness of the assessment, and of the prior proceedings and acts of the superintendent of streets and city council, upon which it is based, and it was therefore not necessary to offer any evidence of these prior proceedings as the foundation for introducing these documents. It is competent for the legislature to prescribe rules of evidence for the trial of actions, and statutes which make a document prima facie evidence of the regularity of official proceedings in reference thereto, or which cast the burden of proof in an issue upon either party to the action, are within the constitutional power of the legislature. Const. Lim. 450. Neither does this provision of the statute contravene the provision of the constitution prohibiting the legislature from passing special or local laws "regulating the practice of courts of justice." It Is not necessary that a law shall affect all the people of the state in order that it may

Cooley,

be general, or that a statute concerning procedure shall be applicable to every action that may be brought in the courts of the state. A statute which affects all the individuals of a class is a general law, while one which relates to particular persons or things of a class is special. A statute regulating the rights of married women, or which affects all mining corporations, or confers rights upon municipal corporations of a certain class, or places restrictions upon all foreign corporations, is a general law. City of Pasadena v. Stimson, 91 Cal. 238, 27 Pac. Rep. 604; In re Madera Irr. Dist., 92 Cal. 316, 28 Pac. Rep. 272, 675; Wheeler v. Philadelphia, 77 Pa. St. 348; Land Co. v. Soper, 39 Iowa, 112; In re New York El. R. Co., 70 N. Y. 350. The provision under consideration is neither a local nor a special law. It is applicable to all actions for the foreclosure of street-assessment liens, and is in force in all parts of the state. That the legislature may prescribe different rules of procedure, as well of pleading as of evidence, for different actions, is illustrated by what it has done in defining the form of pleading upon judgments and in other special actions, in requiring the pleadings in forcible entry and detainer to be verified, in denying a divorce upon the mere default of the defendant, in making a tax deed prima facie evidence of the regularity of the proceedings prior to its issuance, and in requiring a different form of proof for the execution of a will from that of any other written instrument, as well as in numerous other instances.

4. The objection to an item for engineering is evidently the result of an oversight. Section 8 of the act under consideration requires the superintendent to include "any incidental expenses" in the assessment to be made by him. Section 34 provides that the city and county surveyor shall do the surveying and "other engineering work necessary to be done," and that his compensation therefor shall be included in the term "incidental expenses." Upon the face of the assessment, it must be assumed that the engineering work was done, and that the amount included therefor is correct. The court, therefore, erred in excluding the evidence, and for this error its judgment is reversed.

We concur: GAROUTTE, J.; PATERSON, J.

(4 Cal. Unrep. 182) GRUNWALD et al. v. FREESE. (No. 15,069.) (Supreme Court of California. Aug. 31, 1893.) EXPERT EVIDENCE - RELEASE FOREIGN DEBTDOMESTIC VALUE.

1. Testimony as to the quality of old wire rope sold by sample, that the outer wires were broken into short pieces; that the rope was "rotten, and a little broken, instead of being as the sample;" that much of it was "broken, rusty, and rotten,"-relates to facts open to

common observation, and not requiring expert knowledge.

2. Merchants and clerks of merchants in a foreign country who deal in a certain article are competent to testify as to the market value of the article in such foreign country.

3. A release of a cause of action is not available unless it is specially pleaded.

4. A debt contracted in a foreign country is payable in the currency of that country, and therefore, where the creditor sues in the United States, he is entitled to recover such sum in money of the United States as equals the debt in the foreign country when it was payable.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge. Action by Fritz Grunwald and Otto Munch, partners under the firm name of H. C. Morf & Co., against William Freese. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

Page & Eells, for appellant. Young & Powers and James Herrmann, for respondents.

SEARLS, C. This appeal is prosecuted by the defendant from a final judgment in favor of plaintiffs, and comes up on a bill of exceptions. The action was brought by plaintiffs, factors and commission merchants at Yokohama and Hiogo, in the empire of Japan, to recover from the defendant, a merchant, in the city and county of San Francisco, $4,999.60 Mexican dollars, of the value of $4,149.67 gold coin of the United States, a balance due on a mutual, open, and current account, with interest, etc. For some time prior to 1888, defendant had shipped from San Francisco to plaintiffs in Japan, for sale by them as his factors in the Japanese market, merchandise of various kinds, and plaintiff's had also shipped Japanese goods to defendant, for sale by him in like manner, and for their account in San Francisco. On July 10, 1888, defendant wrote to plaintiffs that he could buy in San Francisco a large amount of old cable rope after it was laid aside by the cable railroad companies, and sent a sample of the rope, asking plaintiffs to notify him by return mail what they could do with the article in Japan; what quotations they could make per picul (133% lbs.) in Mexican dollars, and about how many tons they could dispose of per month. Defendant also inquired if the plaintiffs would authorize him to draw on them, against consignments, for an advance of say $10 gold per ton of 2,240 lbs., F. O. B., (free on board,) San Francisco, 90 days' sight draft, etc. Plaintiffs responded by letter under date of August 16, 1888, saying: "The article in condition like sample is very salable here, only the thickness is not suitable. People here want 13, W. G. No. 8-13, (Birmingham wire gauge,) whereas your samples, according to B. W. G., measure only 16. People here do not wish wire which is thicker than No. 8 or thinner than No. 13," but that between those

numbers it was desirable, and a considerable business could be done in it. Plaintiffs inclosed in a letter samples of No. 8 and No. 13 wire. They also added that, subject to defendant's approval, they had contracted for 50 tons according to his sample, but only of sizes 8 to 13, at the gross sale price of $2.50 per picul. Plaintiffs consented that defendant should draw upon them for 75 per cent. advances of the probable net proceeds, freight and insurance paid there, (San Francisco.) They further stated that, "in the event the first shipment turns out satisfactory to our customers, we will easily be able to sell 20 tons per month." Defendant denied that he owed plaintiffs anything upon the account, and by way of counterclaim sets out that he was induced by the representations of the plaintiffs to purchase and ship to them large quantities of wire cable; that he was misled by them; that they failed to notify him promptly that the cable could not be sold; and in apt terms stated facts which, if true, constituted a defense to the action. It seems that the wire rope was sent to Japan, not to be used in its then condition for mechanical purposes, but to be dissevered, and the wires contained therein to be worked into nails for tea chests, frames for umbrellas, etc. For these purposes the sizes of the wires were required to be from No. 8 to No. 13, inclusive. The two wires sent by letter to the defendant, before mentioned, were samples as to size, and not as to quality, being Nos. 8 and 13, respectively. In rebuttal of the case made by defendant in support of his counterclaim, plaintiffs read in evidence the depositions of Ernest Becker, Theodore Bunge, Henry Lucas, Johann F. Crosser, and Fritz Grunwald, taken upon interrogatories in Japan. These witnesses all testified to a greater or less extent in regard to the condition or appearance of the wire rope forwarded by the defendant, its relative condiuon with the sample forwarded by defendant to the plaintiffs, the market value of goods like the sample and the market value of the goods actually shipped. Cross interrogatories were waived by defendant's counsel, and no objections seem to have been made until the reading of the depositions at the trial, when counsel for defendant moved to strike out from each deposition, severally, certain portions thereof, viz. those portions relating to the quality of the wire rope shipped, and its comparative merits as relating to the samples; also that relating to the market price for this class of goods in Japan, upon the ground that it did not appear that the witness knew the market prices, or that he was sufficiently expert to give an intelligent opinion upon any of these matters. The objections to the several depositions were similar in language, and all based upon the same grounds. The witnesses were all either commission merchants in Japan or clerks in the employ of such merchants.

The question of value, or market value, is mainly one of fact, but is usually defined as a matter of opinion gathered from facts, and as was said by Story, J., in Alfonso v. U. S., 2 Story, 421: "We must necessarily resort to opinions of merchants and others conversant in trade for market prices or values of the goods." Wharton, in his work on Evidence, (section 447,) lays down the rule as follows: "Two essentials, therefore, exist to a proper estimate of value: First, a knowledge of the intrinsic properties of the thing; second, a knowledge of the state of the markets. As to such intrinsic properties as are occult and out of the range of common observers, experts are required to testify; as to properties which are cognizable by an observer of ordinary business sagacity, being familiar with the thing, such an observer is permitted to testify." So far as the condition of the wire rope was concerned, it was a question to be determined, not from its occult qualities, but from its appearance, and from the effect produced upon it by handling; that its outer wires were broken up into short pieces; that "the goods sent were rotten, and a little broken, instead of being as the sample;" that much of it was "broken, rusty, and rotten," or, as another witness said, "in trying to undo the coils the whole thing broke to pieces, into small pieces from half an inch to two inches long." These were facts to be gleaned from observation, and were stated as such, facts open to every observer, and not requiring expert knowledge, and whether they were experts on the subject or were not is of little importance. The question of the value of the rope in the market was one upon which merchants dealing in the article in question were competent to speak. As before stated, the witnesses were all commission merchants in Japan, or were in the employ of such merchants; and it may be added that it appeared directly or incidentally that all of them who testified as to the value of the commodity were or had been engaged in the sale of the article, or were in the employ of those thus engaged. They all showed themselves to possess more or less knowledge of the efforts made by plaintiffs to dispose of the goods, and had themselves either sold, attempted to sell, or were familiar with the efforts made to sell the goods. Under such circumstances, while the depositions are not as full and satisfactory as could be wished in showing knowledge and experience on the part of some of the witnesses, I do not regard the errors assigned in the rulings upon the depositions as sufficiently established to warrant a reversal.

If, however, we are wrong in the foregoing conclusion, and should hold that the depositions were, so far as objected to, improperly admitted, it is not perceived that the court below would have been justified in reducing the amount of plaintiffs' recovery. The balance of account in favor of

plaintiffs was not only proven, but at the trial, in answer to a question by the court, "defendant's counsel announced that there was no contest on the account at all, but as an offset defendant relied on plaintiffs' assurance of disposing of the rope as sent, and that defendant had suffered loss far greater than the amount plaintiffs claimed against defendant by reason of plaintiffs' failure to do what was agreed in the matter, and that defendant asked no affirmative relief, but charged that he was damaged in the sum of $5,000 in round numbers." The case as made by the defendant failed to establish a counterclaim, and hence the evidence objected to, which tended to show why consigned goods brought no higher price, and were not sooner disposed of, was unnecessary.

There is a further contention that plaintiffs released defendant from the balance due them. On the 3d day of June, 1889, the plaintiffs, in a letter to defendant, used the following language: "Naturally you know very well that we will never consent to proceed against you legally. Our hope to reduce our loss in this transaction, if possible, to a minimum limits itself, therefore, that after the settlement of your different transactions the loss will be small," etc. Conceding, without deciding, that the quoted clause of plaintiffs' letter amounted to a release, then it should have been specially pleaded. Moss v. Shear, 30 Cal. 468; Piercy v. Sabin, 10 Cal. 22; Coles v. Soulsby, 21 Cal. 47. There was no consideration for the promise, and therefore it did not amount to a covenant not to sue. Canal Co. v. Roach, 78 Cal. 552, 21 Pac. Rep. 304. It is apparent, however, that neither of the parties regarded the letter as amounting to a release. In the following December we find defendant writing to plaintiffs: "I refuse to participate in the loss caused by your fault and recommendations, with more than that already suffered, which amounts to nearly 30 per cent.," to which plaintiffs reply: "We hope soon to find the opportunity to dispose of the goods, and after a thorough inspection we shall consult with our Yokohama house as to what steps we shall take to compel you to the liquidation of this debt."

The account in Japan was kept, as appears, for convenience sake, in Mexican dollars. Plaintiffs aver that on the 7th day of August, 1890, there was due them $4,999.60 Mexican dollars, of the value of $4,149.67 gold coin; that on or about August 26, 1890, they submitted their account to defendant, and demanded payment, and pray judgment for such sum, with interest. It was stipulated that Mexican dollars were at the date of the commencement of the suit worth 83 cents. At the date of the demand (August 23, 1890) they were worth 932 cents, and at the date of trial 74 to 75 cents. The court gave judgment for the value at the date of suit brought. This was more favorable to de

fendant than it would have been to have computed the value of the foreign silver at the date of the demand of payment, but not as advantageous to him as a computation at the date of trial. A debt contracted in a foreign country, in the absence of a contrary understanding, is payable there, and in the legal currency of that country. The parties having, by common consent, expressed their account in Mexican dollars, and the debt having been contracted in Japan, it stands on the same footing as though Mexican dollars were the currency of that country. It follows that, the debt not having been paid in Japan, and plaintiffs being compelled to sue here, they were entitled to judgment for such sum in our currency or money as was equivalent to their claim in Japan. Benners v. Clemens, 58 Pa. St. 24; Cash v. Kennion, 11 Ves. 315. In the language of the chancellor in the case last cited: "Where a man agrees to pay £100 in London upon the 1st of January, he ought to have that sum there upon that day. If he fails in that contract, wherever the creditor sues him the law of that country ought to give him just as much as he would have had if the contract had been performed." Apply the principle thus enunciated to this case, and we may say that, had defendant met his contract when it was due, that is to say, when demand was made upon him,-plaintiffs would have had $4,999.67 Mexican dollars of the value of 93% cents each, or their equivalent in our currency; a sum in excess of that which the court awarded them. If a man contracts to deliver wheat on a given day, and fails to do so, the measure of damages is the market price of the article on that day; and in principle it is difficult to see why the rule should not hold good when he agrees to deliver Mexican dollars, or other foreign money, which, in the absence of some positive law of our own, is but a commodity. There are authorities which hold that the rate of exchange at the date of the trial is the criterion by which to determine the amount of the judgment, but in most instances the only question evidently relates to the mere expense of effecting the exchange, or, in other words, the cost of transmitting the funds, for that is what it amounts to,-cases in which, so far as appears, the question of depreciation or appreciation of the currency in which the debt was payable cut no figure. In Benners v. Clemens, supra, cited by appellant, the recovery was had upon the basis of the value of legal tenders at the date of the presentation of the account. To discuss the question satisfactorily would require more space than can reasonably be accorded to it, and I content myself with saying that my conclusion, drawn from a perusal of the conflicting authorities, prompts the declaration that if any error was committed by the court below it was in favor of the defendant, and hence that he is not in a position to complain. The evidence supports the findings,

and the latter cover the issues in the case, and the judgment appealed from should be affirmed.

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

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

(99 Cal. 425)

PEARSON v. DROBAZ FISHING CO. et al. (No. 14,985.) (Supreme Court of California. Aug. 31, 1893.) VACATING JUDGMENT-INADVERTENCE OF COUNSEL. On an application to set aside a judgment it appeared that the cause was the seventh on the calendar for the day on which it was set for trial. Defendant's counsel was not present on that day, as he had business in another court, but he had some one to answer "Ready" when the case was called, supposing that it would not be reached for trial on that day. It was reached, however, and judgment was rendered for plaintiff. Defendant's counsel was informed of the judgment on the same day, and at once requested plaintiff's counsel to consent that it should be set aside, which was refused, whereupon he immediately made an affidavit of the facts, and procured an order to show cause. Held, that the judgment should have been set aside for excusable inadvertence of counsel.

Department 2. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge.

Action by Edward Pearson against the Drobaz Fishing Company and others. There was an order refusing to set aside, on the ground of excusable inadvertence of counsel, a judgment theretofore entered in favor of plaintiff, and defendants appeal. Reversed.

A. Ruef, E. Parker, and Haines & Ward, for appellants. Henry H. Davis, for re spondent.

PER CURIAM. The plaintiff commenced this action in the superior court of the city and county of San Francisco to recover the sum of $382.25 alleged to be due for work, labor, and services rendered and performed by him for defendants at their special instance and request. The complaint was filed July 15, 1891, and on the 25th of the same month the defendants answered thereto, denying that the defendants, or any of them, were indebted to the plaintiff in the sum named, or in any other sum, for work, labor, and services, or otherwise, or that the said sum, or any portion thereof, was due and payable from defendants, or either of them, to the plaintiff. Shortly after the answer was filed the case was placed on the trial calendar of department 6 of the court, and on October 6, 1891, it stood for trial as No. 7 on that calendar. When the calendar was called on the morning of the lastnamed day the defendants' attorney, thinking the case would not be reached for trial until the next day, and having business in