to and did shove the door in, he held the weapon uncocked in his left hand, using his right hand and shoulder to break open the door. The instant the door gave in from the force applied to it by the defendant, the weapon exploded. In other words, the giving way of the door and the discharge of the pistol were approximately simultaneous. The only plausible explanation of the cause of the discharge is that either the trigger came in contact with some part of the door when it was forced open in such manner as to throw the lock back or, as the defense suggests, the defendant had his finger upon the trigger at the moment he exerted the force necessary to shove the door in and at the same instant of time involuntarily pulled the trigger-a movement which could be influenced or caused by the exertion employed in breaking open the door by means of the force required to be exerted for that purpose. This latter theory is the more plausible of the two and, as seen, coincides with the view of the defendant as to the cause of the

discharge of the weapon. It, however, only emphasizes the fact of the recklessness in handling a loaded firearm near the presence of others when the party handling it is at the same time attempting some other act which must necessarily distract his attention from the weapon. But whatever might have been the direct cause of the discharge of the weapon, the fact remains that it was discharged through some cause while in the

ably have so viewed that act, and their verdict implies that they did thus view it, and, as before stated, we are unprepared to say, as a matter of law, that they reached an erroneous conclusion, or that the result of their consideration of the evidence is not justified.

[4] The next and last point to be considered involves the question of the alleged misconduct of the jury.

It appears that, after the case had been submitted to the jury and the latter had retired to the jury room for deliberation and had thus been out for some time, they caused to be conveyed to the judge information that they desired further instruction as to the amount of punishment to which the defendant would be amenable in the event of the return of a certain verdict. The court thereupon ordered the jury to be brought before it, and, this being done, the foreman, after stating that they had not agreed upon a verdict, remarked:

"The jury would like to ascertain the degree either one of the degrees of murder charged in of punishment that would follow conviction of the complaint."

to the crime of murder of the first degree, the To which the court replied that, except as of the court, and, consequently, one with matter of punishment was wholly a province which the jury had no concern, and declined to give them any information upon the subject. The jury were thereupon returned to the jury room for further consideration of

the case.

hand of the defendant and while he was engaged in forcibly effecting an entrance into In support of his motion for a new trial a room where there was gathered a number upon the ground of the asserted "misconduct of persons sitting about a table in close prox- of the jury by which a fair and due considerimity to the door broken open by him and of ation of the case has been prevented" (secwhose presence there he was aware. tion 1181, subd. 3, Pen. Code), the defendant The handling of a loaded firearm in a pub-filed and introduced affidavits by two of the lic street or in a building or other place where a number of people are assembled or are passing to and fro is always attended with more or less danger, even where some degree of care is exercised in the handling of such weapon; but how much more danger must there be in the handling of such weapon by a person at a time when his mind is occupied by another matter of paramount concern to him. His mind could not at that time be upon the weapon to such a degree as to enable him to handle it with the care and caution with which ordinarily he would probably handle it. That the defendant's mind was not upon his weapon as he was forcing the door open is very clear from the fact that he did not know precisely how it came to be discharged. It would seem to be true that the act of the defendant in holding in his hand a loaded weapon at the time he was engaged in forcing an entrance into the room, thus bringing into play much, if not all, of his physical power, and with his mind centered upon getting into the room, itself constituted gross or culpable negligence. At all events, the jury could reason

jurymen in which they alleged that they were at all times during the deliberations of the jury of the opinion that the defendant was entitled to an acquittal at their hands and so voted up to the time that they were led to believe that the crime of involuntary manslaughter "was and is not a felony under the laws of the state of California; and affiants further say that to the best of their knowledge and recollection each and every member of said jury, while deliberating upon said case, expressed himself as believing that the crime of involuntary manslaughter is and was not a felony under the laws of the state of California"; that, had they known believed that the crime of involuntary manslaughter was a felony under the laws of the state of California, they "never would have consented or agreed to a verdict of guilty of such crime in said action."

or

The reply to the contention that the showing thus made entitled the defendant to a new trial is that the affidavits of jurors cannot be received or considered for the purpose of impeaching their verdict. People v. Azoff, 105 Cal. 632, 39 Pac. 59; People v. Soap, 127

Cal. 408, 411, 59 Pac. 771; People v. Emmons, | therefor in the market nearest the place at which 7 Cal. App. 685, 95 Pac. 1032. In the Soap Case, supra, the ground of the alleged misconduct of the jury was precisely the same as that upon which the defendant in the case at bar based his affidavits alleging misconduct. The court in that case said:

In a suit for damages by the sellers of wine bottles against the buyer, who refused to accept, the measure of damages was regulated by Civ. Code, 3353, providing that in estimating dam- Where a judgment is erroneous only in that ages the value of property to a seller is deemed it fails to include "nominal damages," an into be the price which he could have obtained considerable, trifling sum, it will not be reversed,

unless it be made to appear that such damages, | the sum total of the purchase price specified if allowed, would have carried costs. in both contracts.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4240-4247; Dec. Dig.

1073.

For other definitions, see Words and Phrases,
First and Second Series, Nominal Damages.]
8. NEW TRIAL 74-GROUNDS-FAILURE TO
INCLUDE NOMINAL DAMAGES.

Where a judgment is erroneous only for failing to include nominal damages, new trial will not be granted unless such damages would have carried costs.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 150; Dec. Dig. 74.]

9. COSTS 22-COSTS IN SUPERIOR COURT AMOUNT OF JUDGMENT.

Under Code Civ. Proc. §§ 1022, 1025, regulating the matter, to carry costs a judgment of the superior court must amount to $300, so that a judgment for nominal damages will not do so. [Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 47-73; Dec. Dig. 22.]

that the plaintiffs did not use due or any The trial court in its findings of fact found diligence in making sales of the bottles; that the several sums obtained therefor at the several sales were not separately or in toto the highest obtainable market price; and that plaintiffs were not compelled to have such bottles removed to a warehouse because of the defendant's breach of the contracts.

[1, 2] The bottles having been sold at private sale, and it being an admitted fact in the case that title to the bottles had not passed from the plaintiffs, it is conceded, as it must be, that plaintiffs' only remedy was damages for the breach of the contracts (Cuthill v. Peabody, 19 Cal. App. 304, 125 Pac. 926), and that the measure of the dam10. SALES 384-REMEDIES OF SELLER-AC-ages alleged to have been thereby sustained TION FOR BREACH OF CONTRACT-NOMINAL is to be found in section 3353 of the Civil DAMAGES. Code, which provides that:

Where the contracted sellers of wine bottles, upon the buyer's refusal thereof, failed to resell at a prevailing market price that would have more than made them whole, they were entitled only to nominal damages.

[Ed. Note.-For other cases, see Sales, Cent. Dig. 88 1098-1107; Dec. Dig.

384.]

Appeal from Superior Court, City and County of San Francisco; B. V. Sargent, Judge.

Action by Henry Lund and Henry Lund, Jr., copartners, etc., against Arthur Lachman. From a judgment for defendant and an order denying them a new trial, plaintiffs appeal. Judgment and order affirmed. H. W. Glensor, of San Francisco, for appellants. Jesse H. Steinhart, of San Francisco, for respondent.

"In estimating damages, the value of property to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale."

In addition to claiming that the findings are contrary to the evidence concerning the market value of the bottles and the necessity for their removal to a warehouse as a result of the defendant's breach of the contracts, it is insisted that the plaintiffs should have been allowed 5 per cent. commission as compensation for the cost of making the several resales of the bottles.

[3] The evidence adduced on behalf of the plaintiff's shows that the bottles were sold at a series of sales made during a period of LENNON, P. J. This is an action for dam-time extending from July 6, 1911, to March ages for the alleged breach of a contract to purchase personal property. The appeal is from the judgment in favor of the defendant and from the order denying a new trial.

The facts of the case as revealed by the pleadings and proof are substantially these: On November 30 and December 1, 1910, the defendant entered into two contracts with the plaintiffs for the purchase of certain specified quantities of claret quart bottles, to be shipped from Sweden during the months of February or March, 1911. The contract price was $5.85 per gross, and delivery was to be made from the ship's side at San Francisco. The bottles arrived at San Francisco on the steamship Strathbeg on June 15, 1911. They were tendered to the defendant on June 16, 1911, and refused by him. The bottles were thereupon removed to a warehouse by the plaintiff's, where they were stored and insured, and from time to time sold at private sale at varying prices for the aggregate sum of $2,912.85, which was $12.15 less than

20, 1912, at approximately $5.75 per gross, and there was some evidence, competent and uncontradicted, adduced upon behalf of the defendant to the effect that during the month of June, 1911, there was in the city and county of San Francisco, the place where the bottles should have been accepted by the defendant, a well-established and active market price for bottles similar to those contracted for by the defendant, which ranged from $6.25 to $7.25 per gross. The evidence also shows that the business of the plaintiffs was that of steamship freighters, importers, and exporters, and that the sale of the bottles in question was intrusted to a salesman of the plaintiffs, whose specialty was that of selling iron, coke, and pig iron; and Carl Bundschu, manager of the Gundlach-Bundschu Wine Company, as a witness for the defendant, testified that:

sold to us by Henry Lund & Co. a gross of claret "About in the month of July, 1911, there was bottles at $5.85 a bale. That was below the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

were not compelled to store the bottles because of the defendant's failure to accept them. While it was not incumbent upon the plaintiffs to make the resale immediately after the repudiation of the contract by the de

market price, cheaper than I could buy else- the contract price, it cannot be said that the where." evidence does not support the finding of the The salesman of the plaintiffs, in explana-trial court to the effect that the plaintiffs tion and justification of the price procured for 387 bales of the bottles in question, which he had sold in or about the month of March, 1912, to one Rosenberg, testified that at that time he was unaware of the fact that there was a scarcity of bottles in the local market | fendant, nevertheless the plaintiffs were reresulting from a scarcity of bottles in Germany and Sweden, and that it was this fact known to Rosenberg at the time of the sale which prompted the latter to make the purchase.

[6] What we have said thus far in effect disposes of the point that the plaintiffs were entitled to interest upon the amount of damage accruing from the defendant's breach of the contracts, and to compensation for making the resale in the form of a commission upon the price obtained. Assuming that the plaintiffs ordinarily would have been entitled

quired to exercise reeasonable diligence in locating the nearest market, and ascertaining the prevailing market price for the rejected bottles; and there can be no doubt that there was sufficient evidence to justify the trial Counsel for the plaintiffs, in effect, concede court in finding that, if the plaintiffs had that such evidence was sufficient to warrant seen fit to seek and take the market price and support the finding of the trial court for the bottles which prevailed on the day that the plaintiffs had failed and neglected to and for many days following their arrival procure the highest obtainable market price and tender and rejection at San Francisco, for the bottles, if section 3353 of the Civil they could have sold them at a substantial Code is to be construed "as requiring the sell-advance over the contract price which would er, regardless of his business capacity or have more than covered the expense of drayability along the particular line of goods age, storage, and insurance for a reasonable forming the subject-matter of the broken time had such expense been found to be neccontracts, to go into the open market and ob-essary, and therefore in no event would the tain for the rejected goods a price as high plaintiffs have been entitled to recover such or higher than any other firm or individual is expense from the defendant. getting. In other words, it is the contention of the counsel for the plaintiff's that it was the intent and purpose of section 3353 of the Civil Code to provide that the value of the property to the seller is the price which he personally could obtain for it, regardless of what the market price thereof may have been. That this contention is utterly without merit is, we think, manifest up-to recover such items as a part of their damon a casual consideration of the language employed in the Code section under discussion; but, even if that were not so, the section has, in effect, been held to mean that the seller of rejected property who seeks to recoup his loss, if any, by a private sale, must resort to such resale in the open market and at market values. Hill v. McKay, 94 Cal. 5, 29 Pac. 406; Wilson v. Gregory, 2 Cal. App. 312, The view which we have taken of the 84 Pac. 356; Welch v. Nichols, 41 Mont. 435, meaning and intent of section 3353 of the 110 Pac. 89. Obviously the market value of a Civil Code compels the conclusion that the commodity is the highest price in the market trial court did not err in its rulings permitwhere it is offered for sale which those hav-ting evidence of the prevailing market value ing the means and inclination to buy are during the period following the tender and willing to pay for it; and it is equally obvi- rejection of the bottles. ous, we think, that market values are created and controlled by the condition of the market with reference to supply and demand, rather than by the particular or peculiar selling ability of the seller.

[4, 5] This view of the law compels the conclusion that the evidence sustains the finding of the trial court concerning the failure of the plaintiffs to procure the highest market price obtainable for the bottles in question; and, inasmuch as there is some evidence tending to show that at the very time the contract was breached, and subsequently, there was at San Francisco an active market for bottles of the character and quantity called for in the contracts in controversy, with a market price therefor ranging from $6.25 to $7.50 per gross, which was far in excess of

age, nevertheless it is obvious that, if the plaintiffs failed-as the court upon sufficient evidence found-to take advantage of prevailing market prices which would have more than made them whole, they cannot now predicate a claim for damage upon such items any more than upon the other elements of damage already considered.

The judgment and order are affirmed.
We concur: KERRIGAN, J.; RICH-
ARDS, J.

On Petition for Rehearing.

PER CURIAM. [7-10] On petition for rehearing the only point urged is that the original opinion failed to take cognizance of the point presented and discussed in the briefs of counsel for the plaintiffs that the judgment should be reversed because the trial court refused to allow the plaintiffs at least nominal damages. While this point did not escape the attention of this court upon the original consideration of this case, a discussion of it was inadvertently omitted from the opinion. It will suffice to say at this time that it is the

་

UNDERTAKING VALIDITY.

159

APPEAL

An appeal undertaking was not invalid by reason of the inadvertent omission of the word "house," in the expression "is a house holder," in that part referring to the qualifications of. the sureties.

[Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. 88 544, 550-578; Dec. Dig. 159.]

settled rule that, where a judgment is errone- | 2. JUSTICES OF THE PEACE ous only in the particular that it did not include nominal damages, it will not be reversed nor a new trial granted unless it be made to appear that such damages, if they had been allowed, would have carried costs. Sutherland on Damages, § 11; Kenyon v. Western Union, etc., Co., 100 Cal. 454, 35 Pac. 75. Nominal damages have been defined to mean merely an inconsiderable, trifling sum, Petition for mandamus by Martha Washsuch as "a penny, one cent, six cents" (David-ington Council No. 2, Daughters of Liberty of son v. Devine, 70 Cal. 519, 11 Pac. 664; Maher the State of California, and others against v. Wilson, 139 Cal. 514, 73 Pac. 418); and to the Superior Court of the State of California, carry costs a judgment of the superior court in and for the City and County of San Franmust amount to the sum of $300 (Code Civ. cisco, and George E. Crothers, one of the Proc. 1022, 1025). Such a judgment ob- judges thereof. Writ denied. viously could not be considered to be one for nominal damages as above defined (Broads v. Mead et al., 159 Cal. 765, 116 Pac. 46, Ann. Cas. 1912C, 1125); and, as the judgment in the present case would have to amount to $300 before it could carry costs, it follows that a judgment for nominal damages would not carry costs. We are satisfied that in no event could the plaintiffs, under the pleaded and proven facts of the present case, have been allowed more than nominal damages; consequently the error, if any, in the particular stated will not suffice under the authorities above cited to warrant the reversal of the judgment or the granting of a new trial. The petition for a rehearing is denied.

MARTHA WASHINGTON COUNCIL NO. 2,
DAUGHTERS OF LIBERTY OF CALI-
FORNIA et al., v. SUPERIOR COURT OF
CALIFORNIA, IN AND FOR CITY AND
COUNTY OF SAN FRANCISCO, et al.
(Civ. 1768.)

(District Court of Appeal, First District, Cali-
fornia. Nov. 23, 1915. Rehearing Denied
Dec. 23, 1915. Denied by Supreme Court Jan.
20, 1916.)

1. JUSTICES OF THE PEACE 159-APPEAL UNDERTAKINGS-DISMISSAL-STATUTE.

Code Civ. Proc. § 974, gives an appeal from the judgment of a justice's court at any time within 30 days after its rendition, and section 978A provides that the undertaking on appeal shall be filed within 5 days after the filing of the notice of appeal, and that notice of its filing shall be given to the respondent, who may except to the sufficiency of the sureties within 5 days thereafter, and that unless they or other sureties justify within 5 days thereafter, the appeal shall be regarded as if no undertaking had been given. Petitioner suffered judgment in justice's court, and duly filed and served a notice of appeal and an undertaking on appeal, with notice to plaintiff therein of the filing, and plaintiff duly excepted to the sufficiency of the sureties named in the undertaking, and petitioners without attempting to have such sureties justify, on the next day filed a new undertaking, with notice thereof to plaintiff, and on plaintiff's motion the appeal was dismissed on the ground that the sureties on the first undertaking or other sureties in their stead had failed to justify after exception to their sufficiency. Held, that the dismissal was

proper.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 544, 550-578; Dec. Dig. 159.]

Clarence A. Henning, of San Francisco, for petitioners. T. C. Van Ness, Jr., of San Francisco, for respondents.

KERRIGAN, J. In this proceeding the petitioners seek the issuance of a writ of mandate to compel the respondent to vacate a certain order made by it, dismissing an appeal taken by the petitioners from a judgment rendered in an action tried in the justices' court. Such judgment was entered on the 31st day of December, 1914, in favor of one E. F. Trimble, the plaintiff therein, against the petitioners here who were the defendants in that action. Thereafter, and on the 30th day of January, 1915, the petitioners filed and served a notice of appeal from the judgment of the justices' court, and on the same day filed an undertaking on appeal, and served notice on the plaintiff therein of the filing thereof. Subsequently, to wit, on February 3, 1915, the plaintiff excepted to the sufficiency of the sureties named in the undertaking. Fearing that said undertaking was defective because of the omission of the word "house," in the expression "is a householder," in that part of the bond referring to the qualifications of the sureties, the petitioners made no attempt to have the sureties on that bond justify, but on February 4th filed a second undertaking on appeal, in which the omission was inserted, and on the same day served the plaintiff with notice of the filing of the new undertaking. Upon motion of the plaintiff the superior court, after a hearing had thereon, dismissed the appeal upon the ground that the sureties upon the undertaking of January 30, 1915, or other sureties in their stead, had failed to justify after written exception to their sufficiency had been served as provided by law. It is to compel the vacating of such order of dismissal that the writ of mandate in this proceeding is sought.

[1] We think the order of the superior court must be sustained. An appeal from the judgment of a justices' court may be taken at any time within 30 days after the rendition of the judgment, and the appeal is taken by filing a notice with the justice and

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