To the same effect is the decision in the recent case of Ex parte Moynier, 2 PAC. REP. 728; and other cases maintaining the same view of the law might be cited, but the foregoing will suffice for the purposes of this opinion. The writ is dismissed, and the petitioner remanded to the proper custody. THORNTON, J I concur in the judgment. It is unnecessary to decide whether the power with which the city council is by the act of 1862 invested, springs from the police power, or the power to tax and raise revenue. The power is given, and can be amply given under either source of authority. Const. art. 9, §§ 11, 12. (2 Cal. Unrep. 441) DINGLEY and others v. GREENE and others. (No. 8,788.) Filed February 23, 1885. BUILDING CONTRACT-CONSTRUCTION OF PROVISIONS IN. A condition in a building contract that "should the contractor at any time during the progress of the work refuse or neglect to supply a sufficiency of material or workmen, the owner shall have power to provide materials or workmen, after one day's notice in writing being given to finish said work, and the expense shall be deducted from the amount of the contract," does not require that the owner shall, on default of the contractor, either finish the work in his place, or wait until the time has expired when the contract was to be finished under the agreement, and then proceed against the contractor for damages. The owner may, instead, enter into an independent contract for the completion of the work. Department 1. Appeal from the superior court of the city and county of San Francisco. Walter Van Dyke, for appellants. McAllister & Bergin, for respondents. BY THE COURT. 1. There was sufficient evidence to justify the findings that the only persons interested in the contract between McCann and defendant Greene were the parties to that contract. 2. It was stipulated that certain averments should be considered. to be incorporated in the complaint, and denials of them considered to be inserted in the answer. The averments are: "The defendant Greene paid to defendant McMeekan the sum of $3,000, or thereabouts, before the same became due under his contract, and with full notice and knowledge on the part of said Greene of the claims and liens of said plaintiffs, and in fraud of their rights in the premises." It is contended by appellant that the judgment should be reversed because the court below failed to find on the issue made by the denial of the foregoing allegations. But the issue is immaterial. There is no averment that when Greene paid McMeekan any sum due upon his contract she had notice of claims of plaintiffs, but that she had such notice when she paid an additional sum of $3,000, or thereav.6p,no.2--6 bouts, not due, and which, so far as appears, never became due to McMeekan. 3. It is urged that the contract between Greene and McMeekan was "non-forfeitable;" that by the terms of that contract it was provided, "should the contractor at any time during the progress of said works refuse or neglect to supply a sufficiency of material or workmen, the owner shall have power to provide materials or workmen, after one day's notice in writing being given, to finish said works, and the expense will be deducted from the amount of the contract;" that by the terms of her contract she was limited to two courses of action: "she must either wait until the time had expired when he had agreed to finish his contract, and then proceed against him for damages," or go on, in accordance with the clause quoted, "and finish the buildings in the place of the contractor." Gillen v. Hubbard, 2 Hilt. Ct. Com. Pleas, N. Y. 303, is relied upon to sustain the view of counsel. But that case only holds that when the owner has acted upon the clause of a contract "and given the notice in writing," and finishes the building, he becomes the contractor pro hac vice, and cannot afterwards claim from the contractor any greater deduction from the contract price than the amount expended in completing the work. case the building is completed under the original contract. "contracter." or owner, is not bound to substitute himself as contractor and assume all the contractor's obligations. He may do so if he chooses, upon giving notice. Here the defendant did not give such notice, (assuming it might have been constructively served on the contractor, who had absconded,) but having paid to him all she owed him, neither gave him notice that she would finish the buildings, nor waited until the time was ripe to sue him for breach of his contract. She simply entered into an independent contract for the completion of the buildings. Judgment and order affirmed. In such But the (66 Cal. 443) WALSH v. SOUIE and others. (No. 8,777.) Fil d February 23, 185. EJECTMENT-ACTION ON UNDERTAKING ON APPEAL FOR USE AND OCCUPATION. On the affirmance of a judgment on appeal in ejectment, the plaintiff may maintain an action in his own name on the undertaking on appeal, to recover the value of the use and occupation of the premises sued for, from the time of appeal to the delivery of possession, though he had conveyed the premises to a third person prior to the rendition of the judgment appealed from. The plaintiff, as between himself and his grantee, is the trustee of an express trust, and authorized, as such, to sue on the undertaking. Department 1. Appeal from the superior court of the city and county of San Francisco. Walter Van Dyke, for appellants. McAllister & Bergin, for respondents. MCKINSTRY, J. The judgment in favor of plaintiff in the ejectment suit-Walsh v. Hill et al.-was entered February 25, 1873. The present action is on an undertaking, given on appeal from that judgment, to stay its execution. Among other things, the undertaking provides that "if the judgment appealed from be affirmed, or the appeal be dismissed, they" (present defendants) "will pay the value of the use and occupation of the property from the time of the appeal until the delivery of the possession thereof," etc. The answer herein avers that long before the entry or rendition of the judgment in ejectment, the plaintiff therein (plaintiff herein) had conveyed all his right, title, and interest in the premises demanded to Mason and Bensley. The court found that such conveyance was made after the commencement of, and before the rendition of judgment in, the action, Walsh v. Hill et al. The statutory undertaking is provided for as part of the procedure relating to appeals, and in each case has reference to a particular judgment and its execution. Code Civil Proc. 945. It is made primarily for the benefit of the plaintiff in the judgment to which it refers, and should be treated as if in terms made to him. It is executed to indemnify the plaintiff against damages sustained by the wrongful withholding of the possession of the demanded premises by the defendant in the judgment, pending an appeal and until the plaintiff shall regain possession. As between the plaintiff and defendant, in the action of ejectment, the judgment in that action conclusively determines that it is the plaintiff from whom the defendant has wrongfully withheld the possession. And the judgment is evidence (at least prima facie) that the plaintiff is the person from whom the defendants continued to withhold the possession pending the appeal, and until, etc. The grantee of a plaintiff in ejectment pendente lite acquires no right which can be enforced in the action, or under the judgment, in his own name, unless he shall have, had himself substituted as plaintiff. Code Civil Proc. 385. The rights he acquires, so far as they depend upon the action of ejectment, the judgment therein, or its execution, remain to be enforced for his benefit in the name of the plaintiff. If the grantee is substituted, under section 385, he himself becomes the plaintiff. If he is not so substituted, he does not, as grantee of plaintiff's estate in the land, become the legal assignee of plaintiff as to an undertaking executed on appeal from a judgment subsequently entered in favor of plaintiff. By omitting to apply to be substituted as plaintiff, he makes the nominal plaintiff his trustee to prosecute the action and recover the possession in his own name. The grantee of plaintiff cannot apply in his own name for a writ of restitution, or to be placed in possession under a judgment in favor of his grantor, unless he has been substituted as plaintiff. The judgment in ejectment has adjudged the plaintiff therein to be entitled to the possession of the demanded premises, and the claim here sought to be enforced is based on a contract which relates to that judgment, and to the delivery of the possession to the party in whose favor the judgment was rendered. There is no pretense of an assignment of the undertaking after it was made. With certain exceptions every action must be prosecuted in the name of the real party in interest. Code Civil Proc. 367. But here the undertaking was in legal effect given to the party plaintiff in the ejectment, to whom, as the court below finds, was delivered the possession of the demanded premises. If the grantees of the plaintiff, of a date prior to the judgment, acquired any interest in the value of the use and occupation of the defendant in the ejectment, it was one to be enforced against or in the name of their grantor. As to the undertaking, it is to pay plaintiff the value of the use and occupation. In legal effect the contract is made with him, and if others have claims on him with respect to it, he should be held as to them to be trustee of an express trust, authorized to sue on the undertaking. Code Civil Proc. 369. Judgment affirmed. We concur: Ross, J.; McKEE, J. (66 Cal. 446) PERINE V. TEAGUE and others. (No. 8,557.) 1. UNLAWFUL DETAINER AGAINST TENANT HOLDING OVer. A tenant under a lease who holds over after the term is ended, against the consent of the lessor, and refuses to surrender possession, is not a tenant at will, and the lessor may maintain an action of unlawful detainer against him upon notice provided by statute. Code Civil Proc. Cal. §§ 1161, 1162. 2. RENEWAL OF LEASE-PAROL EVIDENCE TO PROVE. In such an action, parol evidence is not admissible to prove the renewal of a` written lease, where the pleadings do not raise such an issue. Department 1. Appeal from the superior court of the city and county of San Francisco. J. C. Bates, for appellant. Geo. W. Tyler, for respondent. MCKEE, J. This was a summary proceeding brought under section 1161, Code Civil Proc., by a landlord against his tenants, for an unlawful detainer of leased premises after the expiration of the term for which they had been let. Judgment for recovery of possession of the premises, treble rents, and costs of suit was entered; and from the judgment, and an order denying a new trial, the defendants appeal. The point which they make on the appeal is that the judgment is erroneous, because (1) they were tenants at will, in possession under a written lease, void for uncertainty in the description of the premises, and as the tenancy was not terminated by 30 days' notice, as required by sections 789, 790, 791, Civil Code, the notice given under sections 1161, 1162, Code Civil Proc., was insufficient, and the proceeding was not maintainable; and because (2) the court erred in ex cluding testimony tending to show a verbal renewal of the lease by consent of the landlord. 1. On the face of the lease there is no uncertainty in the description of the premises; and the court finds that the defendants entered under the lease into possession of the premises, as described in the lease, and continued in possession during the term, paying the rent reserved by the lease, until the term ended, when they refused to surrender the possession, and held over against the consent of the lessor. That being the case, there was no tenancy at will, and the notice. given to the defendant to quit and surrender possession was sufficient. 2. The evidence offered to prove a verbal renewal of the written lease was properly excluded. The only issues raised by the pleadings related to the tenancy of the defendants in possession under the written lease. There was no averment in the answer of any renewal of that lease, oral or otherwise; there was, therefore, no issue to which the evidence was relevant. The evidence justified the findings. Judgment and order affirmed. CHESTER V. TOKLAS and others. (No. 8,218.) Filed February 23, 1885. Secured DEBT-ASSIGNMENT OF SECURITY WITH DEBT. Upon the assignment of a secured debt, the creditor may also assign his security Department 1. Appeal from the superior court of the city and county of San Francisco Stetson & Houghton, for appellants. Jos. Napthaly, for respondents. Ross, J. The plaintiff is the assignee of George W. Chester, of whatever right of action or claim he had against the defendants by reason of the transfer by defendants to one Xarissa Hill of the note and mortgage next hereinafter alluded to. The findings show that on or about the sixth day of December, 1875, one H. W. Woodward executed to George W. Chester, or order, his promissory note for $3,333.33, payable one year after date, with interest thereon at the rate of 1 per cent. per month, to secure which, he at the same time executed to Chester a mortgage; that, on the eighteenth of December of the same year, George W. Chester executed to the defendants five promissory notes, made payable to defendants or order, for the aggregate sum of $2,341.30, bearing interest at the rate of 1 per cent. per month, and to secure their payment assigned to defendants the Woodward note and mortgage. Subsequently, and on the twelfth of June, 1876, the defendants, in consideration of the face value of the five Chester notes, which was paid to them by one Xarissa Hill, as |