papers used on the hearing, (Pardy v. but instead of coming through the door Montgomery, 77 Cal. 326, 19 Pac. Rep. 530;) through which he had passed out, he opened and there was no such identification. We another door leading into another and pritherefore advise that the judgment be af-vate part of the house, where the floor had firmed. SCHMIDT V. BAUER. (No. 12,588.) (Supreme Court of California. Sept. 21, 1889.) NEGLIGENCE-DANGEROUS PREMISES. 1. In an action for personal injuries, it appeared that plaintiff was in defendant's saloon, and asked him the way to the urinal; that in the direction defendant pointed there was a stairway leading down to the urinal, and on the wall the word "Toilet" was painted; that in the same general direction there was a door leading to a porch, from which a stairway led down into the back yard, and plaintiff passed through this door and down this stairway; that he, in attempting to return, opened another door leading into another part of the house, where the floor had been taken up for repairs, and, stepping in, fell into the cellar and was injured; that he did not know the condition of the building, and supposed he was going in through the door at which he had gone out. Plaintiff both denied and admitted that he knew what the word "Toilet, painted on the wall, meant, but testified that he did not see it. Held, that the evidence showed no actionable negligence on the part of defendant. 2. A complaint alleging that plaintiff was at the place where the accident occurred on business with, and at the invitation of, defendant, is sufficient to show defendant's duty, as between the parties, to keep the premises in safe condition. been taken up for the purpose of making repairs, and, stepping in, was precipitated into a cellar and injured; that the plaintiff did not know the condition of the building which caused his fall, and that he supposed that he was coming back through the door at which he had gone out. The plaintiff both denied and admitted that he knew what the word "Toilet," painted on the wall, meant, but testified that he did not see it. This evidence showed no actionable negligence on the part of the defendant, and for that reason the nonsuit should have been granted. The keeper of a public place of business is bound to keep his premises, and the passage-ways to and from it, in safe condition, and use ordinary care to avoid accidents or injury to those properly entering upon his premises on business. Parker v. Publishing Co., 69 Me. 173; Carleton v. Steel Co., 99 Mass. 216; Bennett v. Railroad Co., 102 U. S. 577. But this rule only applies to such parts of the building as are a part of, or used to gain access to, or constitute a passage-way to and from, the business portion of the building, and not to such parts of the building as are used for the private purposes of the owner, unless the party injured has been induced by the invitation or allurement of the owner, express or implied, to enter therein. Zoe bisch v. Tarbell, 10 Allen, 385; Parker v. Publishing Co., 69 Me. 173; Pierce v. Whitcomb, 48 Vt. 127; Wilkinson v. Fairrie, 1 Hurl. & C. 631; Murray v. McLean, 57 Ill. 378; Victory v. Baker, 67 N. Y. 366; Toomey v. Sanborn, 14 N. E. Rep. 921. As was said in Sweeny v. Railroad Co., 10 Allen, 372: "In order to maintain an action for an inWORKS, J. This is an action for damages jury to person or property by reason of negfor personal injuries, alleged to have been ligence or want of due care, there must be the result of the defendant's negligence. shown to exist some obligation or duty There was a trial by jury. When the plain- towards the plaintiff which the defendant tiff's evidence was in, the defendant moved has left undischarged or unfulfilled." The for a nonsuit, which was denied. There evidence fails to show any such duty restwas a verdict for the plaintiff, the defend-ing upon the defendant towards the plainant's motion for a new trial was denied, tiff. His injury resulted from his entrance, and he appeals. Department 1. Appeal from superior court, city and county of San Francisco; JOHN F. FINN, Judge. J. F. Castlehun, for appellant. Marcus Rosenthal, for respondent. uninvited, into the private apartments of The evidence on the part of the plaintiff the defendant. No duty rested upon the deshowed substantially that the defendant fendant, as between him and the plaintiff, to was a keeper of a liquor saloon, and that keep such part of his premises in a safe conhis private residence was connected there- dition. The plaintiff was there without with, in the same building; that the plaintiff right. The evidence does not show that he was in the saloon, drinking beer; that he was in any way induced by the defendant asked the defendant the way to the urinal; to enter upon that part of his premises. It that the defendant pointed the way; that not only fails to show negligence on the in the direction indicated by him there was part of the defendant, but does clearly show a stairway leading to the urinal in the base-contributory negligence on the part of the ment of the building, and on the wall the plaintiff. The way to the urinal was plain word "Toilet" was painted in large letters to be seen. The plaintiff chose to go into to direct the way; that in the same general the private yard of the defendant, and in direction pointed out by the defendant there coming back mistook the door through was a door leading out onto a porch, back which he fell for the one through which he of the defendant's dwelling or family rooms, passed out. He had no right to pass from which a stairway led down into the through either of these doors. To do so back yard; that the plaintiff, instead of under the circumstances was such neglitaking the stairway leading to the urinal gence as must preclude him from recovering connected with the saloon, passed through for his injuries. Victory v. Baker, 67 N. Y. the door out onto the porch, and down 366. into the back yard, where there was a urinal for the use of the family; that the plaintiff attempted to return to the saloon, Conceding that the respondent was not wrongfully in the place where the accident occurred, and giving the most liberal con plaintiff was the owner thereof, and that the defendant had no title there to. The appellant assigns as error that the court permitted a witness to testify that a certain instrument purporting to be a deed was in struction to his evidence, he was there by the mere license of the appellant, and for that reason the appellant owed him no duty, and he went there subject to all the risks attending his going. Holmes v. Railway Co., L. R. 4 Exch. 257; Parker v. Pub-fact a mortgage. The bill of exceptions lishing Co., supra. Counsel for respondent rely mainly upon McRickard v. Flint, 21 N. E. Rep. 153, as supporting his case. The case referred to differed widely from the one before us. The negligence relied upon there was that the defendants had failed to comply with a statute of that state, which provided that "in any store or building in the city of New York in which there shall exist or be placed any hoist-way, elevator, or well-hole, the openings thereof through and upon each | floor of said building shall be provided with and protected by a substantial railing, and such good and sufficient trap-doors with which to close the same as may be directed and approved by the superintendent of buildings; and such trap-door shall be kept closed at all times except when in actual use by the occupant or occupants of the building having the use and control of the same, etc. It was held that the failure to comply with this statute was prima facie evidence of negligence, and that the plaintiff, being in the building on business with one of the occupants, and walking through a door opening onto the elevator shaft, by reason of which he fell and was injured, was not guilty of contributory negligence. This, it seems to us, presents an entirely different question from the one we are considering, and does not in any way militate against the conclusions we have reached. There are other cases cited, but they do not conflict with the views we have expressed. does not contain all of the evidence, or pur- We concur: MCFARLAND, J.; SHARP- FOX V. DYER et al. (No. 12,509.) (Supreme Court of California. Sept. 24, 1889.) FRAUDULENT CONVEYANCES - PLEADING - COM PLAINT. In an action to set aside fraudulent conveyances, a complaint which does not sufficiently state the facts constituting the fraud, and does not show that plaintiff would have been injured thereby, is demurrable. Department 1. Appeal from superior court, Alameda county; N. HAMILTON, Judge. Action to set aside fraudulent conveyances, by Fox against Dyer and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. appellant. E. J. & J. H. Moore and A. E. Ball, for & Metcalf, for respondents. Haggin & Dibble and Metcalf The appellant also contends that the court below erred in overruling his demurrer to the complaint. We think the complaint was sufficient. It alleges that the WORKS, J. The complaint in this case atplaintiff was at the place where the ac- tempts to state the facts showing that cercident occurred on business with, and at the tain conveyances of real estate by an asinvitation of, the defendant. This was signee in insolvency were fraudulent, and sufficient to show the duty on the part of that the plaintiff, as one of the creditors of the defendant, as between the parties, of the insolvent, was thereby damaged. The keeping the premises in safe condition. As complaint is unnecessarily long, and to atwe have seen, the evidence failed to estab-tempt to state even its substance would for lish this allegation, and for that reason the plaintiff's case was not made out. Judg ment and order reversed. We concur: Fox, J.; PATERSON, J. BROWN V. CASEY. (No. 12,978.) (Supreme Court of California. Sept. 11, 1889.) APPEAL-RULINGS ON EVIDENCE. Where the bill of exceptions does not contain all the evidence, it cannot be said that the court erred in allowing a witness to testify that an instrument purporting to be a deed was a mortgage. In bank. Appeal from superior court, San Joaquin county; J. G. SWINNERTON, Judge. L. W. Elliott, for appellant. J. C. Campbell, for respondent. that reason extend this opinion in like manner, and serve no useful purpose. The court below sustained a demurrer to the complaint, and we think properly. It does not sufficiently state the facts claimed to have constituted the fraud, nor does it show that the plaintiff was in a position to have been injured, conceding that the conveyances were fraudulently made. Judgment affirmed. We concur: Fox, J.; PATERSON, J. TAPPAN V. ALBANY BREWING CO. (No. 12,433.) (Supreme Court of California. Sept. 21, 1859.) CONTRACT-PUBLIC POLICY. An agreement to pay one of the owners of land sold under a decree in a suit for partition a WORKS, J. This is an action to quiet title. would not oppose the confirmation of such sale, further sum for her interest therein, provided she The court found fully the claim of title under which was made for an inadequate price, is against which both of the parties claimed to own public policy, as being a promise to pay a considerthe property, which clearly showed that thelation for the concealment of a fact which it was v.22p.no. 10-17 WORKS, J. The complaint in this case al 2. In such case it is immaterial that defendant was negligent in having its tracks so near the edge of the wharf, and in having only two men in charge of the train, and in using inferior brakes, and that it had no wharf franchise, and the bay was a public highway for boats, in the absence of evidence that the injury was willful and wanton. BEATTY, C. J., dissenting. Commissioners' decision. In bank. Apleges, in substance, that an action for par-peal from superior court, San Diego county; tition of certain real estate having been E. PARKER, Judge. brought, judgment rendered, decree for the Olin Wellborn and Henry J. Stevens, for sale of the property entered, the property appellant. Henderson & McDonald, for rewas sold to the defendant; that the prop-spondent. erty was sold for much less than its real value; that the plaintiff's assignor, who was one of the defendants, and a tenant in HAYNE, C. Action for damages for percommon of the real estate, being dissatis-sonal injuries. Verdict and judgment for fied with the price at which the property plaintiff. Defendant appeals. was sold, was about to commence proceed- The defendant is a corporation owning ings to prevent the confirmation of the sale and operating a wharf extending into the by the court; that the defendants, to induce bay of San Diego, at which vessels land. her not to make such objections, agreed to Along the length of the wharf was a railpay her $1,000 additional for her interest in road track, which was used for the purpose the property immediately upon the sale be- of transporting freight to the shore. On ing confirmed; and that she, relying upon one side of this track was a space about such promise, and in consideration thereof, seven feet, which was used as a passage-way refrained from making objections to the con- for travelers along the wharf. On this firmation of said sale, and that, no objec-side was a landing for small boats, with tion being made, the sale was duly con- steps going down to the water, and a boatfirmed. The defendant paid $100 of the house, which was rented by the defendant amount, and this action is to recover the to a man who kept boats for hire. On the balance of $900. The court below overruled other side was a space of about 13 inches a demurrer to the complaint, and the de-between the outer rail and the edge of the fendant failing to answer, judgment was entered against it, and it appeals. wharf. On this side, about 300 yards from the shore, was a raft moored to the wharf. There was some staging there, with steps been familiar with the general features of down to the raft. The plaintiff must have the place, for he testifies that he had “been going there for about three years." On the day of the accident the plaintiff had been fishing on the raft. While there, he accepted an invitation from one of his companions to go boating. The companion procured a boat, and attempted to bring it up to the raft. He did not succeed in getting it close enough, and the boat drifted along-side the wharf. He then told the plaintiff to go upon the wharf, and get down from there into the boat, which the plaintiff proceeded to do. The boat might have been brought up to the raft with slight trouble. The plaintiff himself testifies in this regard as follows: "I don't know what there was to obstruct the passage to the raft. He didn't get up close enough. The demurrer should have been sustained. The contract was a fraud, not only upon the court, whose duty it was to pass upon and confirm or set aside the sale, but upon the parties in the action of partition. It was the plain duty of the plaintiff's assignor, if she knew of any valid reason why the sale should have been set aside, or not confirmed, to make it known to the court and herco-defendants. It is contended by the respondent that this was nothing more than the payment of a sum of money by way of a compromise of litigation, and that such contracts have been upheld. We do not so construe the agreement. It was a promise to pay a consideration for the concealment of a fact from the court and the parties, material to the rights of said parties, and which it was her duty to make known. Such a contract was against public policy, and neither party should receive the aid of the courts to enforce it. Beard v. Beard,I suppose, if he had taken a run out and 65 Cal. 356, 4 Pac. Rep. 229. The judgment is reversed, with instructions to the court below to sustain the demurrer to the complaint. We concur: Fox, J.; PATERSON, J. TROUSCLAIR V. PACIFIC COAST STEAM-SHIP back again, he might have come in. I don't recollect any obstruction to prevent the boat the bow had got under the wharf, his getting in." When the plaintiff got into with which the boat then made an angle. The mast was close up to the side of the wharf, and projected several feet above it. The companion was in the stern. According to the plaintiff's story, he was engaged for 10 or 15 minutes in trying to push the boat out from the wharf. While so engaged, the train came backing out towards the end of the wharf at the rate of about 1. Plaintiff was injured by a train while push-"six or eight" miles an hour. When about ing off from a wharf in a boat. He might have 40 yards from the boat, the lookout on the easily escaped injur if he had changed his posi-end of the train saw the mast and the plaintion in the boat, or had entered it at another place, tiff, and signaled the engineer to stop. and could have seen and heard the approaching train from a distance. His testimony showed that his mind was so fixed on the boat that he paid no attention. Held contributory negligence, war reating a nonsuit. (Supreme Court of California. Sept. 12, 1889.) CONTRIBUTORY NEGLIGENCE--EVIDENCE. The latter did not see the signal as soon as he ought to have done; and although, when he did see it, he tried to stop, he was not able to do so before the place of danger was reached. The edge of the cars caught | act in such a way, and but for such fault the mast, and broke it in two. The plain- the accident would not have happened. In tiff was struck by the mast, thrown against other words, his own neligence contributed a cross-piece or "cap-head," on which the directly and proximately to the injury floor of the wharf rested, knocked over- This seems to be a plain proposition, and board, and seriously injured. The view be- the facts of this case are within it. But tween the place of the accident and the authority is not wanting. The case of starting point of the train was unob- Glascock v. Railroad Co., 73 Cal. 137, 14 Pac. structed. In this regard the plaintiff testi- Rep. 518, is directly in point. There a perfied as follows: "Between me and the point son was killed while crossing a railroad where these cars would start out was an track at a place where the view was unopen space. There was nothing to ob- obstructed for 200 yards. Although the enstruct the view to me or to them. I might gineer did not ring his bell or blow his have been obstructed by the canvass be- whistle, as he should have done, it was tween me and them. I could not see the held, in a suit brought by his administracars. I didn't know the cars were coming. trix, that the plaintiff was properly nonI had no thought to determine whether the suited; and PATERSON, J., delivering the man in the cars could see me or not. I opinion, said: "Having good eyes, it was didn't know they were coming." "There his duty to use them, at least to some exwas no train in sight when I got into the tent, for his own protection, and his failure boat that I recollect. If there was any to do so would becontributory negligence, train, I didn't know it. My mind was so and prevent a recovery, notwithstanding fixed on the boat that I never paid any at- the negligence of the defendant in failing tention. I did not notice any before I got to ring the locomotive bell or blow the into the boat." As above stated, the look-whistle. * If he looked, he saw; out on the train (who was one of the plain- and, having age and faculties to understand tiff's witnesses, and no longer in the em- the dangers, is charged with a knowledge ploy of the defendant) saw the plaintiff. of them, and was bound to act upon that He "could see his head." And it seems en- knowledge as a prudent and cautious man tirely clear that, if plaintiff had looked, he would under the circumstances." must have seen the train coming. Not only In the case before us, it may be conceded, could he have seen it if he had looked, but for the purposes of the opinion, that there he could have heard it if he had listened. was negligence on the part of the defendant One of his witnesses testified that “a train in having its track so near the edge of the of that kind, running out on that pier, wharf, and in having only two men in makes a great deal of noise and fuss. You charge of the train, and in not having betcan hear it from one end of the wharf to ter appliances in the way of brakes. In the other. You often can, except on ac- view of the contributory negligence of the count of the wind. It depends whichever plaintiff this is immaterial. So the fact, way the wind blows. A train if it be such, that the defendant had no could be very easily heard running, at the wharf franchise, and the fact that the bay rate we were running, long before we got was a public highway for boats, are immato where the man was at the mast." And terial. The want of a wharf franchise could the plaintiff himself testified that "there only go to establish wrong on the part of was scarcely no wind going." If he had the defendant, and not to excuse wrong seen or heard the train, he could easily have on the part of the plaintiff. And the right saved himself by stepping back to the to navigate the bay does not give immunstern of the boat, where his companion re-ity from the consequences of doing so negmained uninjured. But he neither looked nor listened. His mind "was so fixed on the boat" that he "never paid any attention." * The ligently. It is certainly true that the plaintiff's conduct did not give the defendant a right to willfully or wantonly injure him; but there is no pretense that the injury was It therefore appears from the plaintiff's willful or wanton on the part of the defendown account that, while seeking amuse- ant or its employes. The evidence does ment and recreation, he voluntarily placed not show anything of the kind, and the jury himself in a dangerous position,-a position expressly found to the contrary. in which, unless care was taken, he would plaintiff should have been nonsuited on his in all probability be injured by, the running own statement. And, to say the least, his of the defendant's train in the ordinary case was not strengthened by the evidence way; that he did so, although the perfectly introduced by the defendant. In a case like safe course of having the boat come up to this, the fact that the jury viewed the lothe raft involved very slight exertion or cality makes no difference. We therefore delay; that while in such dangerous posi-advise that the judgment and order denytion he never thought of danger. He did ing a new trial be reversed, and the cause not look, he did not listen, but allowed his remanded for a new trial. entire attention to be absorbed by what he was doing. This seems to us to have been gross negligence. Suppose that a man should go to sleep upon a railroad track running in the middle of a highway, or should stop his vehicle on a crossing to converse with a friend, and pay absolutely no attention to the approach of trains. Would he have a valid claim if, while in such a position, a train should injure him? The answer to such a claim would be simple and obvious. It was his own fault to We concur: BELCHER, C. C.; GIBSON, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order denying a new trial are reversed, and the cause remanded for a new trial. WORKS, J., did not participate in the decision of the above cause. BEATTY, C. J. I dissent. At the time de fendant's motion for a nonsuit was sub PER CURIAM. This appeal is from an order settling the annual account of Isaac Jessup and S. O. Putnam, executors of the last will and testament of Gershom P. Jesof the disallowance by the court of certain items of account for moneys expended by the executors in the employment of counsel to resist the claim of Richard P. Jessup to the estate, as the pretermitted heir of the deceased. As to the value of the legal services of the attorneys, no question arises. But the contention of the respondents is that the contest was between the legatees named in the will and the pretermitted heir, and that in such a contest the executors cannot represent either side. In Roach v. Coffey, 73 Cal. 281, 14 Pac. Rep. 840, the court said: "We think that it is the settled law of this state that an administrator cannot represent either side of a contest between heirs, devisees, or legatees contesting for the distribution of an estate. He cannot litigate the claims of one set against the other. His duty is to preserve the estate, and distribute it as the court shall direct." Citing Estate of Wright, 49 Cal. mitted it had been made perfectly clear by | I. Kowalsky, (W. H. L. Barnes, of counsel,) the plaintiff's own testimony that he was for respondent. giving no heed to the passage of trains along the wharf or pier when the accident occurred. He was neither looking nor listening; was, in fact, taking no precaution whatever to avoid danger from that source; and was therefore guilty of contributory sup, deceased. The alleged error consists negligence if he knew or had reasonable grounds for apprehending injury from a passing train. But was it clearly shown by plaintiff's testimony that he had such knowledge or grounds of apprehension? I cannot say that it was. He was not on the track or pier, but was in a small sailboat on the bay, which, by the careless and unskillful management of his companion, had been drifted by the wind against the wharf, so that its bow was under, and its mast was resting against, the side of the pier, in which position it was held by the force of the wind or current so firmly that all their efforts were insufficient to disengage it. It makes no difference, it seems to me, that he entered the boat from the pier while it was in this situation. Except in so far as that and previous visits to the pier might tend to prove knowledge on his part of the manner in which the pier and track were constructed, I think that, after he was once fairly in the boat, his subse-550; Bates v. Ryberg, 40 Cal. 465; Estate of quent conduct must be viewed precisely as if he had been sailing on the bay, and by accident or unskillfulness had been carried into the position in which defendant's train found him. The question, then, is whether he knew or had reason to suppose that defendant's track had been so laid that its cars moving upon the rails would project beyond the edge of the wharf so as to come in contact with the mast of his boat. to this he testified that he did not know that the track was so laid, and it appears to me he had no reasonable grounds to suppose so. The wharf in question extends from the shore to the ship channel, a distance of about 1,200 feet across the bay of San Diego,-a bay navigated by small sailing vessels, which are liable at any time to be drifted against the side of the pier; and certainly no one could presume that a track would be so laid upon it that cars in passing would impinge against the masts of boats lying along-side. In fact, it was shown that the cars first used on the track did not project beyond the edge of the wharf, but that wider cars were subsequently adopted, which projected 12 or 15 inches, and that the rails were never moved in so as to render the wider cars harmless. For these reasons I cannot say that the superior court erred in denying the motion for a nonsuit. As Marrey, 65 Cal. 287, 3 Pac. Rep. 896. It is true that in none of these cases was the question of the allowance of attorney's fees directly involved; but the right of executors or administrators to litigate adverse claims of heirs, legatees, or devisees necessarily involved the right to employ counsel for that purpose. The right to employ counsel depends upon the right to litigate. Order affirmed. ROBINSON v. MERRILL et al. (No. 12,107.) (Supreme Court of California. Sept. 5, 1889.) JUDGMENT OPENING. An order granting a motion to vacate a judgment for plaintiff because notice of motion to restore the cause to the calendar was not given, as required by a former order striking it off, is not an abuse of discretion, though it does not require the costs of trial paid out by plaintiff to be refunded, where no request to impose terms was made. Department 1. Appeal from superior court. Santa Clara county; F. E. SPENCER, Judge. J. M. Wood, for appellant. G. B. Merrill for respondents. Fox, J. The transcript shows that this was an action upon a street assessment. Complaint in the usual form, and alleging ownership of the land in all of the defendants. The answer of defendant Merrill traversed all the allegations of the complaint except that of ownership of the land. Default of the defendants Low and the EXECUTORS-EMPLOYMENT OF COUNSEL. Hibernia Savings & Loan Society was enExecutors have no authority to litigate ad- tered. On the 22d of January, 1883, it was verse claims of heirs, legatees, or devisees, and by the court ordered that the case be payments to counsel so employed will not be al-stricken from the calendar, to be restored lowed on settlement of the executorial accounts. In re JESSUP'S ESTATE. (No. 13,124.) (Supreme Court of California. Sept. 30, 1889.) Department 2. Appeal from superior court, city and county of San Francisco; J. V. COFFEY, Judge. For former report, see 21 Pac. Rep. 976. on notice. On the 31st of January, 1887, the plaintiff dismissed the case as against defendants Moses Ellis and John Doe, (both of whom were owners in the land, according to the allegations of his complaint,) and without amending his complaint, and |