Lloyd & Wood, for the appellants.

G. E. Harpham, for the respondent.

MYRICK, J. The defendant Levy, being indebted to a firm of stock rokers for moneys advanced by them in stock transactions, arranged ith another firm of stock brokers, Eppstein & Co., that the latter rm should take up the stocks, paying to the first firm the amount e it, and carry the stocks for him; in this arrangement the deendant Baldwin was to guarantee on behalf of Levy. The guarntee of Baldwin was in the following terms:

"San Francisco, March 10, 1879.-M. Julius Levy in account with Eppstein & Co., commission stock brokers, No. 304 Pine

"I herewith guarantee the above account, to wit., eighteen thousand one hundred and seventy and thirty one-hundredths dollars ($18,170.30), in gold coin, against any loss for sixty days from date, and agree to make good any loss that may be sustained thereon, in reselling the above stock, balance to be paid with interest at 14 per cent. per month. E. J. BALDWIN."

The term of the guarantee was extended from time to time until July 25, 1879, transactions of sale and purchase of other stocks having been had in the meantime by the consent of Baldwin, and on that day the stocks then in hand were sold by Eppstein & Co., they claiming a balance due them of four thousand and twenty-three dollars and fifty-seven cents.

Two questions arise on this appeal, viz.: 1. During the time Eppstein & Co. were carrying the stocks, they paid assessments which had been levied thereon. Were they entitled to deduct the amounts so paid from the proceeds of sales? 2. As to Baldwin, when did interest begin to run-from the dates respectively of the payments made by Eppstein & Co., or from the time the balance was ascertained, viz., July 25, 1879, and at what rates?

We are of opinion that Eppstein & Co. had the legal right to protect the security in their hands by the payment of the assessments. Otherwise it might have been entirely lost by sale for assessments. In guaranteeing the account, Baldwin, in terms, guaranteed interest at the rate of one and a quarter per cent. per month, only on the balance to be ascertained. The balance was ascertained July 25, 1879; therefore, from that day only is interest to be computed at that rate. But, as under section 1,917, Civil Code, on moneys lent, interest is payable at the rate of seven per cent. per annum, and as the transaction between Levy and his guarantor on one side, and Eppstein & Co. on the other, was one of moneys lent, interest is payable thereon at the statutory rate..

Some other points were presented, but there are none which affect the substantial rights of the appellant.

The judgment and order as to Baldwin are reversed, and the cause is remanded, with instructions to render judgment in favor of plaintiff and against the defendant Baldwin, on the following bases, viz: Credit the account sued on with the total amounts paid for stocks, assessments and commissions, viz: forty-one thousand seven hundred and eighty-four dollars and eighty four cents; debit with the amounts received on sales, viz: thirty-nine thousand six hundred and forty-five dollars; add to the credit side, at the proper dates, interest on the intermediate balances in favor of Eppstein & Co., at the rate of seven per cent. per annum to July 25, 1879; from that day the amount in favor of Eppstein & Co. will bear interest at the rate of one and a quarter per cent. per month until date of judgment hereby ordered.

SHARPSTEIN, J., and THORNTON, J., concurred.

CONSTRUCTION OF CONTRACT SUED ON-BREACH OF CONTRACT.-The plaintiffs and the defendant entered into a contract whereby the latter agreed to sell to the former ice, in such quantities as might be demanded, at a certain price. The plaintiffs agreed not to buy ice from any one else. During the continuance of the contract one of the plaintiffs bought ice from other parties. Held, that the same constituted a breach of the contract, and released the defendant from its obligation under the contract, although the ice was bought by such plaintiff for his individual use.

APPEAL from a judgment of the superior court for Merced county, entered in favor of the plaintiffs and from an order denying the defendant a new trial. The opinion states the facts.

Estee & Boalt, for the appellant.

Bennett & Wigginton, for the respondents.

THE COURT. The action is on the instrument following:

"MERCED CITY, Cal., February 17, 1879. "We, the undersigned, agree to furnish ice to William Twomey and H. A. Bloss for the term of one year from date, at Merced, at the rate of five dollars per ton, they, William Twomey and H. A. Bloss, agreeing to pay for the ice on delivery, in gold coin of the United States; they, the said parties, to pay the C. P. R. R. Co. freight at the said Merced; the People's Ice Company agreeing to send or sell ice to the said parties, and them only, for the term of one year; the said parties agreeing to take ice from said People's Ice Co., and from no one else, for the term of one year.

"PEOPLE'S ICE Co.,

"J. S. THOMPSON, President. "Per G. A. BELL."

We find it unnecessary to pass on the zestion as to the validity of the contract, or as to the authority of Bell to sign for the presi

dent or company.

By the terms of the alleged contract it was the duty of the defend. ant to furnish to plaintiffs such ques of ice as should bes demanded of it, when the same s be demanded, during the year. One inducement to defenda: enter into the contract was the promise by plaintiffs to purchase of Lo other person tha defendant, during the year; and a breast of the contract by plaint iffs in that particular would release deferat from any further por

formance, after such breach.

The first demand (if it constituted a demand for ice, made by plaintiffs upon defendant, was on June 2, 1572. Prior to that times, Bloss, one of plaintiffs, purchased from a third person (as admitted by respondents) about six thousand pounds of ice.

Defendant's counsel asked the court below to charge the jury: "You are instructed, that under the terms of the written papor exhibit A, there is an obligation on the part of the plaintiffs to buy no ice from any person except the defendant; and if you find that the plaintiffs, or either of them, purchased ice any time between the seventeenth day of February, 1879, and the second day of June, 1879, from any person except the defendant, then the defendant is

not liable in this action."

Respondents claim that six thousand pounds is so small a quantity of ice that the rule de minimus "nearly" applies; and claims further that the contract was made with both plaintiffs, and with reference to the business they were to conduct of furnishing ice to the public, and that, as the ice purchased by Bloss was used in his hotel which he was carrying on independently of Twomey, the purchase by him was

no breach of the contract.

But the defendant was entitled to furnish all the ice which should Ishould be sold directly to consumers, e indirectly as part of the be purchased by plaintiffs, or either of them, whether the sam

food or drink of the guests of the hoefe of the

Judgment and order reversed and ease remanded for a nev

trial.

No. 9,723.

HARRIS v. MORE ET AL.

Department Two. Filed December 15, 1884.

RECORD OF CONVICTION OF MURDER-EVIDENCE OF.-The record of conviction is admissible in evidence, for the purpose of showing that the person convicted was implicated in a murder.

APPEAL from a judgment of the superior court for Santa Barbara county, entered in favor of the defendants, and from an order denying the plaintiff a new trial.

W. C. Stratton, for the appellant.

Thomas McNulta, for the respondents.

THE COURT. We think the record of the conviction of Sprague of the murder of W. T. More was competent for the purpose of showing that Sprague was implicated in said murder, and that the court erred in excluding it for that purpose.

The evidence introduced, together with that offered and erroneously excluded, was sufficient to entitle the plaintiff to have the issues submitted to the jury, and the court erred in granting a nonsuit. Judgment and order reversed.

No. 8.278.

HARLEY ET AL v. GOLDEN State and MINERS' IRON WORKS.

Department Two. Filed December 16, 1884.

IMPLIED WARRANTY-SALE-CONTRACT OF SALE. --A mere contract of sale or agreement to sell does not imply a warranty. No warranty can be implied except in cases of sale.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts.

George A. Nourse, for the appellant.
Cary & Troutt, for the respondents.

MYRICK, J. The second cause of action stated in plaintiffs' complaint is evidently based on a warranty of the articles specified. Although there is not in the complaint a direct allegation of sale, yet from the language used, in connection with the allegation of warranty, the pleader must have intended to aver a sale with warranty. This is further apparent from the fact that, if no averment of sale was intended, there are not averments of an agreement by defendant to hold the plaintiffs harmless of any expenses they might be put to in and about the property, its transportation or fitting for use. The defendant would not be liable, unless there was a sale with warranty, or unless there was an agreement to hold harmless or to refund. Therefore, we conclude that the pleader in

tended to aver a sale with warranty. The court found there was no sale. It follows, there was no warranty. "A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction:" Sec. 1,763, Civil Code. A mere contract of sale or agreement to sell does not imply a warranty: Sec. 1,764, Civil Code. Doubtless the defendant could have contracted, for a consideration, that the concentrators should prove to be of a certain quality, and able to perform certain work, independent of a sale; it could also have contracted to send the concentrators to plaintiffs, for experiment, and guaranteed their fitness, and agreed to refund all expenses; but such contracts do not appear in this case. There being, then, no sale found by the court, and there being no sufficient averments to show liability on the part of defendant without a sale with warranty, the court was not justified in rendering judgment against defendant for any of the items of expenses paid by plaintiffs. There must be a trial de novo.

Judgment and order reversed and cause remanded for a new trial. SHARPSTEIN, J. and THORNTON, J., concurred.

No. 9,519.

PEOPLE EX REL. ETC., v. LARUE ET AL.

Department Two. Filed December 16, 1884.

DEMAND FOR CHANGE OF VENUE-AUTHORITY OF ATTORNEY TO MAKE.-An attorney has authority, at the time he appears for the defendants, to sign a demand for a change of the place of trial.

CHANGE OF VENUE-AFFIDAVIT OF MERITS, WHAT MUST STATE.-An affidavit of merits, for use on a motion for a change of the place of trial, must aver that the affiant has fully stated the case to his counsel; an averment that he had fully stated his case, and the facts constituting his defense in the action, is not sufficient.

APPEAL from an order of the superior court of the city and county of San Francisco, denying a motion for a change of the place of trial. The opinion states the facts.

J. F. Wendell, for the appellants.

T. C. Coogan, for the respondent.

THE COURT. Appeal from an order refusing to change the place of trial.

Both defendants filed a demurrer to the complaint, and filed a demand in writing signed by their attorney that the place of trial be had in the county where they resided. Notice of the motion for change of place of trial was given by both defendants and stated that the motion was based on the papers on file and the affidavit of Greenlaw. The affidavit of merits was the affidavit of defendant Greenlaw alone, and stated that "he has fully and fairly stated his case and the facts constituting his defense in the said action" to his attorney.