Pacific Coast Law Journal.

VOL. 2.

FEBRUARY 22, 1879.

No. 26.

Supreme Court of California.

UNWRITTEN OPINIONS.

No. 6,196-Lewis et al., respondent, vs. Homeward Bound Mining Co., appellant.-Action brought to recover $2,500 loaned by plaintiff to defendant January, 1877, and a further sum of $1,500 in like manner loaned February, 1877, and interest.

Defendant denies generally and specifically each and every allegation in complaint. Case tried, and court found all the allegations in complaint true, and gave judgment for plaintiff for amount claimed and interest ($4,375 83). Judgment dated 19th of April, 1878.

Defendant, in his bill of exceptions, states that the evidence was insufficient; that there was no authority of the corporation shown authorizing the loan, or authorizing the directors or any one else to borrow money for the defendant; and second, that there was no evidence of subsequent ratification by the defendant, etc.

No motion for new trial, but notice of appeal by defendant from judgment, served 21st of June, 1878.

L. S. Taylor, attorney for appellant.

The acts of individual directors was not the act of the corporation. There was no subsequent ratification of the transaction by the defendant. (The Anglo-Californian Bank

(Limited) vs. The Mahoney Mining Co., U. S. C. Ct., Pac. LAW JOUR., Oct. 12, 1878; Gashwiler vs. Willis, 33 Cal. Re'ports; Sec. 305 Civil Code.)

Ben. Bullard, Jr., and P. Dunlap, attorneys for respondents.

The appeal is not taken until sixty-three days after rendition of judgment. The court can not review the decision of the court below on the ground that the evidence is insufficient, etc., as the appeal is from the judgment, and not on order refusing a new trial. (C. C. P., Sec. 939.)

There is no error of law occurring at trial specified, and therefore nothing for the court to consider.

If appellant was in a position to be heard, a sufficient answer to each ground specified is that no other authority from the corporation is necessary than such as the law confers upon the directors to conduct the business of the corporation. (Civil Code, Sec. 305; 33 Cal. 2; 50 Cal. 353.) Judgment affirmed.

No. 5,980-Ex rel. McCarthy, appellant, vs. Morse, respondent.-Complaint alleges that plaintiff, the relator, is President of Board of Trustees of city of San Diego, and defendant Treasurer. That certain coupons were presented to defendant, as Treasurer, by, and which belonged to, one Hubbell, being coupons on bonds issued by city under and by virtue, etc. That defendant at the time had control of sufficient funds applicable to pay, yet willfully refused, etc., and plaintiff prays that defendant be deprived of office, and judgment, etc.

Defendant denies that Hubbell was the legal owner; also willfully refusing, etc.; admits that he refused to pay Hubbell, but alleges that in all and every one of the matters, etc., he acted honestly, believing he was faithfully discharging his duty, etc.

The court found that defendant acted in good faith, as there was, and is, a doubt as to the validity of said bonds, and he understood and knew that a suit was pending in that court with respect to the testing of the legality of bonds and coupons, etc.

Judgment that plaintiff take nothing, and defendant have his costs. Plaintiff appeals.

In support of appeal, appellant argues-The duties of a. Treasurer are purely ministerial; he has no discretionary powers. The duties of the City Treasurer of the city of San

Diego are defined in Sec. 19 of act approved April 1, 1876, entitled, "An act to incorporate the city of San Diego," page 814, laws of 1875-6; also Sec. 4 of act approved February 24, 1874, "Legalizing certain bonds of the city of San Diego," etc., laws of 1873-4, p. 156. He is vested with no discretion. If signature of President and City Clerk to the order or coupon be genuine, he must pay. The coupons imported on their face issuance and execution in compliance with law; they were presented by a bona fide holder, and payment could not be legally refused. Defendant acted entirely on his own whim, regardless of the plain letter of the law. Such a doctrine is vigorously condemned by Justice FIELD in 16 Cal. 58 to 66. Defendant knew his duty; he was bound to know it. Mistake of duty and honest intentions will not excuse the offender. The court having found that defendant refused payment purposely, should have given judgment against defendant. It was not necessary that the refusal should have been made corruptly or with felonious intent.

Henry E. Highton, W. Jeff. Gatewood, Frank Ganahl, A. B. Hotchkiss, City Attorney, attorneys for appellant, cited 2 Cal. 209; 6 Hill, 244; 2 Johns. Ch. Rep. 59; Amy vs. Supervisors, opinion of Justice SWAINE, cited in 1 Dillon on Municipal Corporations, Sec. 177, notes; 3 Denio, 402; 1 Denio, 457; People vs. Hunt, Sup. Ct. Cal., reported in S. F. LAW JOUR., Jan. 5, 1877; 2 Bishop Crim. Proc., Sec. 789; Broom's Philosophy of Law, p. 202.

Chase & Leach, for respondent.

The court having found that respondent acted honestly and in good faith in the matter in issue, appellant can not recover. (Triplett vs. Munter, 50 Cal. 644.)

Judgment affirmed.

No. 6,042-Morgenstern et al., appellants, vs. Hilborn et al., respondents. The following is a summary of the case as appears by the findings. Defendant Hidden leased to one Huntoon a ranch for one year, the grain, when stored, to be equally divided, the title to it, while in store, to remain in Hidden with a lien to him upon Huntoon's share for any money advanced during the term by Hidden, or any person

he might designate. At the expiration of lease the parties mutually agreed to continue it for a year longer under same terms. After commencement of second year defendant Hilborn (a person designated by defendant Hidden to make advances under lease), advanced to Huntoon various sums, and there was an accounting between Huntoon and Hidden for the past year, including the advances by Hilborn and offsets to Huntoon, and a balance found due to Hidden of $718 14, for which Huntoon gave his promissory note to Hidden, it being understood that the latter did not waive his lien on the crop by accepting the note. After this settlement and during the term Hilborn made other advances, and furnished sacks to Huntoon amounting to $283 38. Huntoon in the second year sold his interest in the grain to plaintiffs, the barley being stored in Hilborn's warehouse.

Plaintiffs claim delivery of Huntoon's share of barley and are willing to pay all valid liens, but deny that the note given by Huntoon to Hidden is a valid lien. The court also found that defendants are entitled to a lien for the note and advances, and on payment to Hidden of their amount, $1,001 52, plaintiffs shall be entitled to a division of the barley, and gave judgment accordingly. Motion for new trial denied, and plaintiffs appeal.

J. F. Wendell, for appellants.

The note was not a lien; it was in ordinary form, bearing interest, and without any clause making it a lien. Its consideration was a balance found due on settlement for the past year up to that date, and chargeable on the last year's crop. There were mutual offsets and credits between the parties, and at that time they had a settlement of all transactions of the preceding crop, which included all transactions to that date, and included certain items exceeding in the aggregate the amount of the note. All these items were inserted in the account stated, and thenceforth no action could lie upon them. It is a new indebtedness or undertaking, the nature of the original indebtedness being destroyed, and defendant waived his lien by accepting a note. (33 Cal. 697; 42 Cal. 372.)

George A Lamont, for respondents.

The lease provides that advances made during the term shall be a lien on Huntoon's share of the crop, and no obligation is thrown on defendant to see when they were expended.

Appellants' object to the finding, that "the evidence fails to show that there was any understanding whatever between Huntoon and Hidden that the latter did not waive his lien on the crop by accepting said note." There is no pretense that there was any agreement that the note should be given and accepted in lieu of the lien, and thereby the lien should be waived, and we do not believe that a note given and accepted for the amount of the lien, without any agreement to that effect, destroys the lien. (19 N. H. 419; 4 Cush. 41; 22 Pick. 18.) A note given by a vendee of land to the vendor for the purchase money does not waive the vendor's lien. (22 Cal. 173; 25 Cal. 328.) The evidence shows that there was an understanding that the lien should be continued. Judgment affirmed.

No. 6,081-Sherwood, respondent, vs. Meyerstein, appellant. -Complaint alleges that on, etc., plaintiff sold and caused to be delivered to defendant bullion for which defendant agreed to pay or cause to be paid, etc. Demurrer-from the alternative allegations "that defendant agreed to pay or caused to be paid," it is uncertain what defendant did agree to do. [The transcript does not show how this demurrer was disposed of by the court.] The answer is a denial of sale and delivery. Findings show that defendant purchased of plaintiff bullion for which he agreed to pay on demand Payment was demanded. No part paid. JudgDefendant appealed.

$. ment for plaintiff for amount claimed. H. C. Rolfe, attorney for appellant. There is no pretense that the alleged agreement of sale was in writing, and as no bullion was delivered, and no part of purchase money was paid at the time of alleged sale, it was void. (41 Cal. 15; Civil Code, Sec. 1624, sub. 4; 21 Pick. 384.) The court does not find as a fact that any bullion was received by defendant. Demurrer should have