tirely aliunde and obiter in the case, and not embraced by any of the issues joined therein. Ican see no reason why this court should not, but the strongest and most convincing reasons why this court should, look to the opinion of the learned judge who presided in the court below for the purpose above pointed out. If the opinion was part of the order denying the motion for a new trial, it would be properly a part of the record; but it would be a construction of the order not justified by anything in it, or any rule of interpretation I am aware of, to hold that the opinion was part of the order referred to. Iam of opinion that the court did not err in granting a new trial, and that the order granting it should be affirmed.

WAKEHAM V. BARKER. (No. 12,121.) (Supreme Court of California. Dec. 13, 1889.) SPECIFIC PERFORMANCE-CONTRACT-APPEAL.

1. Specific performance of a contract to sell land, the price of which plaintiff was to pay in work, will not be enforced where the complaint fails to show how much work has been done, how much has been paid in that way, what is the balance due, or that there is any dispute on these points.

2. A contract to pay for a thing in money, and a supplemental contract to pay for the same in work, will not give the alternative right to pay either in work or money.

3. If the action of the court below is well taken on any ground, this court will affirm the ruling, without regard to the reasons which the court may have assigned therefor.

Department 1. Appeal from superior court, Alameda county: N. HAMILTON, Judge.

Action by Samuel Wakeham against James L. Barker for specific performance of a contract for the sale of land, and for damages for non-performance. From judgment in favor of defendant, plaintiff appeals.

a

iVm. H. Chapman, for appellant. Moore & Reed, for respondent.

Fox, J. This is an action for the specific performance of a contract for the sale of real estate. Plaintiff also prays for damages for non-performance, and, in case specific performance cannot be had, then for judgment for compensation for the payments already made, with damages for non-performance. The complaint shows that the plaintiff and defendant entered into an agreement in writing, for the sale by defendant to plaintiff, who also bound himself to buy a certain tract of land in consideration of $50 paid down, and the further sum of $700, to be thereafter paid in money, in monthly installments of $20 each, with interest on all unpaid balances payable monthly, at the rate of 9 per cent. per annuin. If the contract had stopped there, there would have been no difficulty in plaintiff, if not himself in default, enforcing specific performance against the defendant.

But, unfortunately for the enforcement of that remedy, afterwards, and on the same day, the parties entered into a supplemental agreement, in writing, whereby they modified and entirely changed the original agreement, as to the mode, mau

ner, and time of payment. By this second agreement the interest was reduced to 6 per cent. per annum, and the defendant agreed to take his pay, and the plaintiff agreed to pay the said $700 and interest, in work and labor, to-wit, in painting and graining, at an agreed price per square yard, the defendant to furnish the plaintiff with painting and graining to do at the price so fixed, and to pay him 50 per cent. of the price so fixed in cash, the remaining 50 per cent. to apply on account of the said $700 and the interest thereon, until the whole amount thereof was paid, "the entire amount to be taken out within one year from September 1 1884. "

He

It is a well-settled rule of law that specific performance will not be enforced against either party if it cannot be so enforced against the other. It is also well settled that specific performance for personal service cannot be enforced. It follows that the moment this supplemental agreement was made specific performancecould not be enforced against the plaintiff, and, consequently, so long as the contract was not fully performed on his part, he could not enforce it against the other. Nevertheless, whenever he shows that, without default, he has fully performed on his own part, he may compel the other to convey as he has agreed to, or, if conveyance cannot be had, may recover in damages for the breach. But his present complaint does not make a sufficient showing for this purpose. The complaint is filed December 22, 1885. In it the plaintiff alleges that under this agreement he did perform "certain painting and graining for defendant, all of which was done in accordance with said agreement and prior to the 8th day of April, A. D. 1885. further alleges that on said 8th day of April, 1885, defendant asserted that plaintiff had not complied with said agreements, and refused to furnish any more painting and graining to be done by plaintiff, and since then had procured his painting and graining to be done by other parties; that up to that time he had done all that was required of him by the defendant, and was, and still is, ready and willing and able to do the balance. But he nowhere tells us how much he had done, how much he had paid on account of the contract in that way, or what balance remained unpaid on account of the purchase price of the land; nor does he allege or show that there is a dispute between himself and the defendant on this point, or that he himself is ignorant on the point, or in any other way lay the foundation for an accounting be tween the parties. He does allege that on the 18th day of December, 1885, he demanded of defendant a deed of conveyance of said land, and offered to pay him $150 in gold coin, "as the balance in full due him upon said agreements," and that defendant refused to accept said sum and make such conveyance, but gave no reasons for such refusal. In the original agreement, time of payment was made "of the essence of the contract," and provision made for the forfeiture of payments already made, if other payments were in default for the period of 90 days after maturity. In the supplemental agreement this feature was

ey received at that time, in cash, was paid out pro rata by John A. Bunting to his various creditors, among whom were Salz & Co., who appear to have been cognizant of the fact of the transier of the ranch to Mrs. M. E. Bunting. After the transfer, the wife of John A. Bunting, as the agent for the plaintiff, assisted by Mr. Overacker, managed and carried on the farm. John A. Bunting does not seem, after that time, to have had any control or management of the farm or its concerns, or any personal property remaining thereon. He was employed as a railroad man, and was absent most of his time, and certainly after March, 1884, did not reside on the place, and claims that he voted in Los Angeles. From his evidence it appears that when he transferred the land to his mother he sold and delivered to her agent the wagon in dispute; but the bill of sale he made to the personal property on the land did not include it. The wagon remained on the place in the apparent and open possession of the wife, as agent of the mother, in pursuance of the sale, until April, 1885, when it was attached as the property of John A. Bunting, at the suit of one Dyer, Trefry, the defendant here, being then, as now, the officer levying the attachment. On this occasion the plaintiff was proceeding through Mr. Overacker and Mrs. Fleda O. Bunting, her agents, to recover the wagon as her property, but came to the conclusion that perhaps she could not establish satisfactorily her title to it, and apparently with a view to avoid litigation over the matter and effectually to secure her title to and possession of the property, paid off the debt, for the recovery of which the attachment was issued, and obtained from her son a memorandum in writing, signed by him, as follows: San Francisco, 4 | 3, 1885. "Mrs. E. M. Bunting,

"To John A. Bunting, Dr. "(1) 4-horse Concord (built)

"Rec'd payment,

$260 00

"JOHN A. BUNTING." It was given as and for a bill of sale. The wagon, during the time it rested under the levy made upon it, remained on the ranch in charge of a keeper. When the levy was released, it was left, as before, in the possession of John A. Bunting's wife, who claimed it then, as she had always since the transfer of the land to the mother of her husband, as plaintiff's property. Mr. Overacker and his daughter, Mrs. F. O. Bunting, declared that the wagon was considered by them, (and so, also, says John A. Bunting,) from the time of the transfer of the ranch, as his mother's, and they all treated the conveyance of the land as good and valid in law, and the wife held actual possession of the land and the wagon, openly, as the property of the plaintiff; and after the transfer, having dealings with Salz, one of the defendants, in selling the products of the farm, he never claimed any right to offset any debt he owed for such produce with the indebtedness of John A. Bunting to Salz and Niebaus. But it appears that the wife had, in the year 1883, filed a declaration of homestead on the land, and this had never been abandoned, and she had not joined in the deed from her husband to his mother, but

she never asserted any homestead right, and claimed to hold actual possession of the farm as the plaintiff's property. There were some circumstances developed on the trial which strongly induce the belief that the defendants knew this wagon was intended to be sold to the plaintiff when the transfer of the land was made, but there was no positive proof to that effect. The wagon was sold under execution sale at the suit of Salz and Niehaus, and bought by Salz for $160. No question was raised on the trial but what the plaintiff paid full value for the property she purchased, both real and personal. Nor was any claim made that the sale was fraudulent in fact. The main proposition contended for was that there was no such immediate delivery accompanying the sale and followed by an actual and continued change of possession of the property as is contemplated by section 3440 of the Civil Code.

The jury who tried the case found a verdict for the plaintiff in the sum of $525. The defendants contend that the evidence was insufficient to justify the jury in their action. An examination of the record satisfies us to the contrary.

Again, it is said that the court erred in allowing evidence to be introduced as to the cost price of the wagon. The cost price of the property, while not conclusive as to its value at the time of its conversion, is nevertheless a circumstance which is admissible to aid in arriving at the value at the time in question. Angell v. Hopkins, 79 Cal. 181, 21 Pac. Rep. 729. It is further objected that the alleged bill of sale, heretofore set out, was inadmissible in evidence, it being claimed in this connection that it did not purport to be a bill of sale of the wagon in dispute. The objection was not well taken. The memorandum in writing, signed by the party who is alleged to have made the sale of the Concord wagon in dispute, tended to throw light upon the matter of the sale of the wagon, and in that view, if no other, it was proper to go to the jury.

The appellant complains, also, that the trial court committed errorin not striking out, upon his motion, the evidence of Mrs. F. O. Bunting, the wife of John A. Bunting, showing that in 1883, just after the transfer of the ranch, she, as the agent of the plaintiff, took possession of the wagon. There was evidence to the effect that the wagon was, at the time of the sale of the ranch, negotiated for and sold to the plaintiff through her agents, Overacker and Mrs. F. O. Bunting, and that it was bought by them for the plaintiff from John A. Bunting. This being so, it was proper to show that the possession and delivery immediately followed to the agent for the principal. It is also assigned for error that the court allowed, over the defendant's objection, this question to be put to and answered by the witness Mrs. F. O. Bunting: "Did Mr. Bunting, subsequent to the sale in 1883, and up to the time of the levy of the attachment by the defendants here, exercise any acts of ownership or control over that property?" The objection to the question was that it called for an opinion of the witness. As it seems to us, the question, fairly considered, called

upon the witness to state facts, and was proper.

Further, the appellants claim that certain instructions given for them, and another by the court of its own motion, being correct expositions of the law applicabie to the facts of the case, are contradictory to instructions asked by the plaintiff and granted by the court, by which the jury were misled. The plaintiff's theory of the case seems to be, that no change of possession was necessary, if the property at the time it was sold was in the possession of a third party, which party at the request of the vendor and vendee, agreed to retain its possession for the vendee, while the defendant's contention was that the vendor always had possession, and had not transferred it, as the law requires, to the vendee, under section 3440 of the Civil Code. The view of the law taken by the plaintiff is correct, according to the opinion of the appellate court in Williams v. Lerch, 56 Cal. 330. The instructions are not contradictory; they simply tell the jury what the law is, if they should believe the evidence to sustain either the plaintiff's or defendant's theory of the case. While it may be said that some of the instructions given did not lay down the law as broadly as might have been done, yet, when we come to construe them as a whole, we do not find that the court committed any error likely to mislead the jury.

The defendants further complain that certain instructions asked for by them and refused should have been given. Time and space do not permit of the discussion of them in detail, but from a careful inspection it appears to us that such of the principles of law embodied in them as were applicable to the case had already been given in other instructions; the others were not applicable to the case, and were properly refused.

We think the facts of this case are such that a jury may well have found as they did. Perceiving no prejudicial error, we advise that the appeal from the judgment be dismissed and the order affirmed.

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

PER CURIAM. For the reasons given in the foregoing opinion, the appeal from the judgment is dismissed and the order affirmed.

RANKIN V. SISTERS OF MERCY. (No. 10,458.) (Supreme Court of California. Dec. 16, 1889.) UNDUE INFLUENCE-PLEADING-INSTRUCTIONS.

1. In an action to recover money deposited with defendant by plaintiff's intestate, the answer set up, as new matter, that plaintiff's intestate made a contract with defendant to care for, support, and maintain him during the remainder of his natural life. in consideration of $2,000, which he paid defendant, who maintained him under said agreement until his death, which occurred a little more than a year later. Code Civil Proc. Cal. § 462, provides that any new matter of affirmative defense is deemed to be denied. There was evidence that when decedent made the deposit he was old and weak in body and mind. Held, that an instruction as to the unfair advantage and undue influence of defendant over decedent was justified by the pleadings and evidence.

2. An averment that "defendant has neglected and refused to pay "sufficiently avers non-payment. Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; T. K. WILSON, Judge.

Hassett & Tevlin, for appellant. T. Z. Blakeman, for respondent.

BELCHER, C. C. Action to recover money alleged to have been left with defendant on deposit. Verdict and judgment for plaintiff. Appeal by defendant from the judgment and an order denying a new trial. It is alleged in the complaint that one Timothy Collins died on the 29th day of August, 1883; that plaintiff is the administrator of his estate; that defendant is a corporation, organized under the laws of this state, and that at all the times mentioned in the complaint it maintained and conducted a house, known as St. Mary's Hospital, wherein it received, boarded, lodged, and cared for persons for pay or hire; that on the 10th day of July, 1882, Collins became an inmate of said house, to be boarded, lodged, and cared for by defendant, and on the same day deposited with defendant the sum of $2,000 in gold coin; that the purpose of the deposit so made was to have the money safely kept by defendant, and a reasonable portion thereof applied in payment of the board, lodging, and care furnished him, and the balance thereof returned to him whenever he should depart from or cease to be an inmate of the house; that defendant received the money on the terms and conditions aforesaid, and agreed to observe the same; that Collins remained an inmate of the house and was cared for by defendant until he died; that $10 per week would be a reasonable compensation for the board, lodging, and care furnished him while he was an inmate of the house, and “that the balance of said sum of $2,000, to-wit, the sum of $1,400, is due and payable to the plaintiff by the defendant; and the defendant has neglected and refused to pay the same, or any part thereof, though requested to do so by plaintiff. ' A general demurrer was interposed to the complaint, and "overruled for want of prosecution,' The defendant then answered. The answer denied that at the time named, or at any other time, "Collins deposited with the defendant the sum of $2,000 in United States gold coin, or ever deposited any sum of $2,000 with the defendant, except as hereinafter stated;" denies that said sum of $2,000 was deposited with or received by the defendant for the purposes, or on the terms and conditions, stated in the complaint; denies that $10 per week would be a reasonable compensation for the board, lodging, and care of Collins while an inmate of the house, or that $1,400, or any sum whatever, is due or payable to plaintiff by defendant. "And for a further and separate defense to this action" the answer alleges: "That the said Collins, on or about the date and time stated in the complaint, entered into a contract with the defendant whereby the defendant agreed to admit the said Collins into the said hospital, and take care of, support, and maintain him during the remaining period of his natural life, and pro