with negligence violated a duty resting upon him. He must prove facts from which it can be fairly inferred that the party's negligence caused the injury complained of. He is not bound to prove more than enough to raise a fair presumption of negligence on the part of the party charged, and resulting in injury to himself. Having done this he is entitled to recover, unless the party produce evidence sufficient to rebut the presumption."

The instructions quoted are in direct conflict upon an important question in the case, for which reason the judgment and order must be reversed and the cause remanded for a new trial. In the one, the jury was told that the burden of proof was upon the plaintiff to account for the loss of the sheep; in the other, that the burden was upon the defendant to show that the loss occurred through the negligence of the plaintiff.

Judgment and order reversed, and cause remanded for a new trial.

We concur:

(66 Cal. 522)

MCKINSTRY, J.; MCKEE, J.

MCKEE v. PRESTON. (No. 8,568.)

Filed March 19, 1885.

INFANTS-CONTRACTS FOR BENEFIT OF.

Where certain minors, by their father, contract with another for the erection of a building on the land of such minors, the same to be paid for out of the rents accruing therefrom, and in pursuance thereof the building is erected and the rents so applied to the cost of the building, it not appearing that the building was worth more than the amount received for it, the minor children cannot maintain an action for money had and received to recover the rents so paid. Department 1. Appeal from the superior court of the city and county of San Francisco.

J. M. Burnett, for appellant.

G. F. & W. H. Sharp, for respondent.

Ross, J. This being an action for money had and received, proceeds upon the theory that the defendants have money which, in equity and in good conscience, belongs to the plaintiffs. The plaintiffs are minor children of one McKee, with whom they lived at the time of the transaction in question. Being the owners of certain unimproved land in the city of San Francisco, their father said to the defendants that if they would erect a certain building on the land, he could rent it, and that they (defendants) should receive the rents of the building until the rents should pay for its construction. Defendants accepted the proposition,-put up the building. It was rented, and they received the rents, and applied them in discharge of the cost of the building. After all this had transpired, the minors, by their guardian, bring this action to recover of the defendants the amount of rent so received and applied. There is nothing in the case tending to show that the building was not worth what the defendants charged and received for it. The question is whether or not it is right to make the defendants, who, under the circumstances stated, erected the build

ing, and who were paid therefor out of the rents of the building, refund those rents. The effect of this would be to give the plaintiffs the benefit of the defendants' material and labor without any compensation, which would not be just. On the whole, we think the judgment and order should be affirmed; and it is so ordered.

We concur:

(2 Cal. Unrep. 451)

MCKINSTRY, J.; MORRISON, C. J.

HUGHES v. PARSONS. (No. 8,609.)

Filed March 19, 1885.

1. FINDINGS-CONFLICTING EVIDENCE.

Findings of a jury on material facts will not be disturbed where the evidence is conflicting.

2. JUDGMENT FOR NOMINAL DAMAGES-ERRONEOUS ADMISSION OF EVIDENCE AS GROUND FOR REVERSAL.

Judgment will not be reversed on the ground of erroneous admission of evidence, where such error resulted in a finding of nominal damages only, against the party claiming injury therefrom.

Department 1. Appeal from the superior court of the county of Monterey.

This was an action in ejectment, both plaintiff and defendant relying on prior possession to sustain his title.

S. F. Geil, for appellant.

W. H. Webb, J. A. Wall, and H. V. Morehouse, for respondent. Ross, J. By the verdict rendered in this case the jury in effect found that the defendant entered upon the prior possession of the plaintiff of the disputed premises and dispossessed her. An examination of the evidence shows that it is substantially conflicting upon the question as to whether the land was in the actual possession of plaintiff or Conroy. The verdict in favor of the plaintiff must therefore be taken as conclusive of the question. The ruling of the court below in respect to the burning of the cabin and fencing resulted in no injury to the appellant, for the jury only awarded the plaintiff nominal damages. The ruling in regard to the question put to Conroy, if erroneous, was cured by his subsequent testimony to the effect that he had possession of the disputed premises from July, 1874, to the first of June, 1879. The instruction is not open to objection on the part of the defendant.

DEFECTIVE SIDEWALK-LIABILITY OF OWNER OF BUILding for.

The owner of building is liable for injury caused by a fall through an opening in a sidewalk, by reason of his neglect to keep the covering thereto in repair, though the building was leased to another at the time of the injury. Jessen v. Sweigert, 4 PAC. REP. 1188, followed.

Department 1. Appeal from the superior court of the city and county of San Francisco.

This was an action for damages for injuries received by a fall, caused by the giving way of a covering to a vault in the sidewalk in front of defendant's building, which vault opened into defendant's cellar, and was an appurtenance to his house.

G. F. & W. H. Sharp, for appellant.

Vincent Neale, for respondent.

BY THE COURT. On the authority of Jessen v. Sweigert, 4 Pao. REP. 1188, the judgment and order are affirmed.

(66 Cal. 525)

SPOTTISWOOD v. WEIR. (No. 8,594.)

Filed March 19, 1885.

1. EVIDENCE-ADMISSIBILITY OF DECLARATIONS TO WITNESS BY THIRD PERSON. Declarations made to a witness by a third person, which tend to discredit the testimony of an adverse witness, are hearsay and inadmissible.

2. WITNESS-TESTIMONY OF, AS TO CONTENTS OF LETTER.

A witness cannot testify as to the contents of a letter written to another person by a stranger to the action.

3. EVIDENCE-PRESS COPY OF LETTER, ADMISSIBILITY OF.

A press copy of a letter is not admissible as evidence until the loss or nonproduction of the original has been accounted for.

4. HANDWRITING-TESTIMONY OF EXPERT BY COMPARISON WITH PRESS COPY. Evidence of an expert in handwriting, given from a comparison of genuine writings with a press copy of the writing whose genuineness is disputed, is inadmissible to prove the genuineness of such document.

5. EQUITABLE ACTIONS-EFFECT OF VERDICT MERELY ADVISORY.

The verdict of the jury in a suit in equity is merely advisory, and until findings have been made by the court there is no decision upon which to base a motion for a new trial.

6. STATEMENT OF CASE-BILL OF EXCEPTIONS-FORM of.

A statement on motion for a new trial and a bill of exceptions may be incorporated in one paper without rendering either invalid, if properly and duly prepared.

Department 1. Appeal from the superior court of the city and county of San Francisco.

Doyle, Barber, Galpin & Scripture, for appellant.

Chas. H. Parker, for respondent.

Ross, J. Each of the parties to this suit, plaintiff and defendants, claim under a deed from one August Hemme, who, in March, 1878,

executed to the plaintiff a deed which conveyed to him the property in question, unless he had previously conveyed it to the wife of defendant Weir. The question in the case, therefore, is whether or not Hemme had previously conveyed the property to Mrs. Weir. It is a conceded fact that there was no deed of record to Mrs. Weir, but it is a further admitted fact that, at the time of the conveyance to the plaintiff, Mr. and Mrs. Weir were in possession of the property, residing there with their family. Some further facts appear without dispute, and they are in substance these: In 1877 Hemme and the defendant James C. Weir were, and for some years had been, engaged in building speculations, and the house in controversy was one of those erected by them. Hemme was the moneyed man, and he held the titles to the various properties; he received the proceeds of the sales, kept the accounts of the business, and rendered monthly statements to Weir. One Chambers was his clerk, and one Land his book-keeper. In May, 1877, Weir was largely indebted to Hemme on account of their transactions. On the third of May of that year, the house in controversy being completed and ready for sale at the price of $13,000, Weir told Hemme that he would take it to his own account at that sum. Hemme acceded to the proposition, and instructed his clerk, Chambers, to draw a deed for the house, and instructed his book-keeper, Land, to debit Weir $13,000 in the books of account. Chambers drew a deed to the property, which Hemme signed and acknowledged before F. O. Wegener, a notary public, and the sum of $13,000 was debited to Weir on the books.

But who was the grantee in the deed, and whether or not it was ever delivered, are the important questions in the case, upon which plaintiff and defendants are at issue. On the part of plaintiff it is claimed that James C. Weir was the grantee, and that the deed never was delivered, and therefore never became operative; while, on the part of the defendants, it is contended that Mrs. Weir was the grantee, and that the deed was delivered, and that under it she went into possession of the property, and has so remained ever since; and, further, that although the deed was not put on record, her possession was notice to the plaintiff of her title. Upon the trial of certain special issues, which were submitted to a jury in the court below, and the findings upon which, in favor of the defendants, were afterwards adopted by the court, certain rulings were made, which, we think, entitle the plaintiff to a new trial.

As has been observed, an important fact to be ascertained was whether the grantee of the deed in question was James C. Weir or his wife, Elizabeth Weir. After James C. Weir had testified that the deed was made to his wife, that it had been drawn by Chambers, and acknowledged and delivered by Hemme on the third day of May, 1877, and before any evidence to the contrary had been given, he was permitted to testify, against the objection and exception of the plaintiff, that two weeks after the execution of the deed, Chambers wrote a note

to Mrs. Weir in these words: "SAN FRANCISCO, May 17, 1877. Mrs. Weir: If you will send me the deed made by August Hemme to you, I will insert, wife of James C. Weir.' A. F. CHAMBERS,"-and gave it to the witness to be delivered; that he never delivered it, and, after keeping it some time, returned it, at Chambers' request, to him; but, before doing so, had, on the advice of one Lawton, (then deceased,) who told him that he was dealing with a tricky man, taken the precaution to take a press copy of it, which he produced. The press copy of this alleged letter was, against the objection and exception of the plaintiff, and without any attempt to account for the loss of the orig inal, permitted to be given in evidence; and subsequently an expert witness, under like objection and exception, was permitted to testify, from an examination of the press copy, that, in his opinion, the original of the copy was in the handwriting of Chambers.

The testimony of Weir to the effect that Lawton told him he was dealing with a tricky man was clearly inadmissible. It was hearsay, and tended to discredit the testimony of the person thus characterized. Nor was the testimony of Weir, to the effect that two weeks after drawing the deed Chambers wrote a note to Mrs. Weir, saying that if she would return the deed in question he would insert in it "wife of James C. Weir," admissible for any purpose, for it was the unsworn declaration of a stranger as to the contents of the deed. Yet it was the declaration of the man who acted as scribe in draughting the deed, and went to the very gist of the controversy. Chambers had been examined on behalf of the plaintiff in advance of the trial under a commission, upon interrogatories settled by consent of the respective parties to the action, and in which were included no reference whatever to the alleged note of May 17, 1877. In his deposition Chambers testified that the grantee in the deed was James C. Weir, and that the deed was not delivered at all, but was retained by Hemme because the consideration was not paid. Of course, if Chambers' testimony was true it should have operated as a defeat of defendant's case. The alleged note of May 17, 1877, the effect of which was directly at variance with his testimony, cut, therefore, a very important figure in the trial. The original of it was not produced, and its non-production not only not accounted for, but not a question was put to Chambers by Weir's counsel in respect to such letter when he was examined as a witness under the commission. It is quite clear that the press copy of the letter was inadmissible until the non-production of the original was properly accounted for. But further than this, an expert witness was given specimens of Chambers' handwriting, and was permitted to compare them with the press copy of the letter alleged to have been written by him to Mrs. Weir, and to give his opinion as to the genuineness of the original of the copy. This was not permissible under any rule with which we are acquainted. It is essential that the document whose genuineness is sought to be proved should itself be produced. When the disputed writing is pro