in its favor and it accepted the same on November 29, 1912, the day the note bore date. So far as the record shows, this is the only knowledge or information that it had concerning the entire transaction.

"Appellant claims that the assent of the bank was in no manner essential to the creation of the liability of the Palo Alto Company or the accruing of the action in favor of the bank against such company, for the reason that where, as here, one corporation takes over the assets of another with an agreement to assume the liabilities of the latter, the creditors of the old corporation may enforce the agreement against the new corporation, citing Morgan v. Overman etc. Co., 37 Cal. 534; Stanford Hotel Co. v. Schwind, 180 Cal. 348, [181 Pac. 780]. Authority in support of this principle is unnecessary. Our Civil Code (sec. 1559) expressly provides that a contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it.'

"A contract for the benefit of a third person, however, like any other contract, requires an acceptance; and until such acceptance is manifested in some manner no rights creating a corresponding liability in favor of such party can arise. Until then the transaction amounts to a mere offer. (13 Corpus Juris, 711; Johnson v. Central Trust Co., 159 Ind. 605, [65 N. E. 1028].) The exemption from liability here claimed by appellant finds no support in the doctrine announced in Hunt v. Ward, supra. If the operation of the statute could be set in motion against the bank seven months before it had any knowledge of the liability created in its favor and to which arrangement it had never assented, it might be conceded for a period beyond which any liability against stockholders might be invoked. In other words, the statute could toll against a right of the existence of which one was ignorant by reason of the fact that he had never assented to the agreement out of which it arose. We cannot subscribe to such a doctrine.

[4] "Equally untenable is the appellant's contention that the note of the Palo Alto Company was a mere renewal, one which did not extend the time prescribed in the statute. It is undoubtedly true that where a note is given by a company in renewal of an existing indebtedness of its own, the liability of stockholders of such company cannot be re

vived or extended by such renewal or extension. (Hyman v. Coleman, 82 Cal. 65, [16 Am. St. Rep. 178, 23 Pac. 62]; Goodall v. Jack, 127 Cal. 258, [59 Pac. 575].) Here, however, no such condition is presented. The transaction under consideration was a new and independent contract made with a different company. Under such circumstances it cannot be said that the new note was a renewal of the old one. The bank had the right to, and undoubtedly did, rely upon the right of recourse to the stockholders of the new company in accepting its note.'

Judgment affirmed.

Lennon, J., Shaw, C. J., and Shurtleff, J., concurred.

SLOANE, J., Dissenting.-I dissent. From whatever standpoint we view the transaction, it seems to me the liability impressed upon the defendant as a stockholder of the Palo Alto Investment Company was created when that corporation in its contract with the Morris Real Estate Company agreed to pay the latter's indebtedness to plaintiff's assignor, the Crocker National Bank.

That obligation was the foundation of defendant's liability. It was the only consideration for the note subsequently given by the corporation and sued on in this action. Whether the note was an extension or a renewal of the original liability, it, in neither case under the established rule in this state, could stay the statute of limitations as to the defendant.

I do not think it is at all clear that an acceptance was necessary by the plaintiff here before a complete accrual of a cause of action in its favor upon the obligation assumed by the Palo Alto Company.

Section 1559 of the Civil Code declares that such a contract may be enforced by the third party "at any time." Notice of acceptance is not required. He may sue precisely as upon a direct contract in his favor. Our decisions, so far as they go, seem to recognize such a contract as in itself establishing the cause of action. As said in Washer v. Independent M. & D. Co., 142 Cal. 702, 709, [76 Pac. 654], the action "does not rest upon the ground of any actual or supposed relationship between the parties, as some of the earlier cases seem to indicate, but upon the broad and more satisfactory basis that the law operating upon the acts of the partics, creates

the duty, establishes privity, and implies the promise and obligation on which the action is founded."

The case of Tweeddale v. Tweeddale, 116 Wis. 517, [96 Am. St. Rep. 1003, 61 L. R. A. 509, 93 N. W. 440], one of the decisions cited in Mr. Justice Wilbur's opinion, we think is misapprehended therein. While it recognizes authority in the books for the doctrine that the third party does not become possessed of the benefit of the promise until he accepts it, the court, after an elaborate review of the authorities, reaches the following conclusion: "Without further discussion of the matter we adhere to the doctrine that when one person, for a consideration moving to him from another, promises to pay to a third person a sum of money, the law immediately operates upon the acts of the parties, establishing the essential of privity between the promisor and the third person requisite to binding contractual relations between them, resulting in the immediate establishment of a new relation of debtor and creditor, regardless of the relations of the third person to the immediate promisee in the transaction; that the liability is as binding between the promisor and the third person as it would be if the consideration for the promise moved directly to such third person, regardless of whether the latter has any knowledge of the transaction at the time of the occurrence; that the liability being once created by the acts of the immediate parties to the transaction and the operation of the law thereon, neither one nor both of such parties can thereafter change the situation as regards the third person, without his consent.'

The suggestion that to apply the bar of the statute of limitations in this case, during a period when the plaintiff probably had no knowledge of his right of action against the defendant, would be unfair and unreasonable, is beside the point. Obviously the statute did run against the original liability from the date of the assumption of the debt. If there had been no new obligation entered into by the Palo Alto Company by making of the note to plaintiff, defendant's liability would clearly have expired, even if plaintiff had never heard of the transaction. If the action is not barred it is because the note created a new and independent indebtedness of the corporation.

Even if notice to and acceptance by the beneficiary of the contract was necessary, it had such notice and made such

acceptance when it received this new note of the Palo Alto Company for the old note of the Morris Company. The old note was surrendered on the making of the new, and the only consideration was the renewal or satisfaction of the old debt, the one by which defendant's statutory liability was originally created. The complaint in this action recognizes the assumption by the Palo Alto Company of the liabilities of the Morris Company as the basis of its claim. There is set forth in the complaint the facts that plaintiff's assignor in the first instance held the obligation of the Morris Company for its indebtedness, that the Palo Alto Company took over the assets of the former, and executed this new note "in renewal" of the Morris Company note. The logical deduction from this state of facts is that the parties met in the execution of the new note upon a mutual recognition of the liability which had been assumed, by the Palo Alto Company to pay to the Crocker Bank the old indebtedness of the Morris Company. The new note of the Palo Alto Company to the Crocker Bank was received in recognition and settlement of that liability.

Clearly, the only claim the Crocker Bank had upon the Palo Alto Company was by reason of the latter's assumption of the indebtedness of the Morris Company. Had the bank rested its claim on that liability, it would have had to begin its action within three years after the assumption of the debt. Instead, it consented to take a "renewal" note. This could not be done to the prejudice of the stockholders' rights, to rest on the original liability.

Rehearing denied.

All the Justices concurred, except Sloane, J., who did not vote.

[L. A. No. 6217. In Bank.-December 23, 1921.]

JENNIE WALZ TURNER, Appellant, v. LEWIS MANEY TURNER, Respondent.

[1] DIVORCE-EXTREME CRUELTY-CONFLICT OF EVIDENCE-FINDINGS— APPEAL.-Where in an action for divorce on the ground of extreme cruelty the evidence is in substantial conflict as to each and all of the alleged acts, the findings, if in themselves sufficient to respond to such issues, will not be disturbed.

[2] ID.-GENERAL FINDING-CONCLUSION OF LAW.-A general finding in such an action that the defendant has not been guilty of extreme cruelty or any cruelty toward the plaintiff, and has not wrongfully or at all inflicted upon the plaintiff grievous or any bodily injury, or grievous or any mental suffering, is not sufficient to respond to the issues nor to support the judgment, since it is nothing more than a conclusion of law.

[3] ID. TRUTH AND FALSITY OF MATERIAL ALLEGATIONS - INSUFFICIENCY OF FINDINGS.-General findings in such an action that each and every material allegation contained in plaintiff's complaint is untrue, and that each and every material allegation contained in defendant's answer is true, are insufficient to support the judgment, since they are uncertain as to what averments are deemed material.

[4] ID. SPECIFIC AND GENERAL FINDINGS-SUPPORT OF JUDGMENT.— Where in an action for divorce on the ground of extreme cruelty the court, in addition to general findings, made specific findings as to the truth or falsity of each and all of the particular averments of cruelty set forth in the complaint, and found them to be either untrue or unsustained by sufficient evidence, the generalities in the findings may be disregarded.

[5] ID.

DESERTION-EVIDENCE-SEPARATION BY MUTUAL CONSENT.In an action for divorce on the ground of desertion, a finding against the plaintiff is justified on evidence sufficient to justify the conclusion that the separation was by mutual consent.

[6] FINDING-NEGATION OF ALLEGATION OF COMPLAINT SUFFICIENCY. A finding which is in identical language a negation of the allegation in the complaint is sufficient.

[7] ID. CONSTRUCTION OF FINDINGS.-Findings are to be construed so as to support the judgment.

[8] DIVORCE-EXTREME CRUELTY-UNCERTAINTY OF SPECIFIC FINDING -INSUFFICIENT GROUND OF REVERSAL.-Where in an action for divorce on the ground of extreme cruelty the court made general findings that the defendant had not at any time or at all been guilty of extreme cruelty toward the plaintiff, the judgment in