statement of that liability of Eva, as a stockholder, for the payment of the corporation's debt, or his proportion thereof, while not a model of pleading, was nevertheless sufficient to carry the necessary implication that he owned stock in the corporation when the particular indebtedness involved was contracted by the Smith Company. [7] It is the contention of appellant that, as there is no allegation of a suit and an opportunity on the part of the indemnitor to defend, he is entitled to regard the payment made by Eva as being merely voluntary. But, as we have indicated above, notice is not necessary in such a case as this, and much less is it necessary that the indemnifier be given an opportunity to defend any suit. While subdivision 4 of section 2778 of the Civil Code specifies that notice may be given to the person indemnifying, it does not make such notice compulsory. The two following subdivisions of that section merely declare rules of evidence under which a judgment recovered against the person indemnified may become prima facie or conclusive evidence of liability in his action against the person indemnifying. "The omission to give notice to the indemnitor does not go to the right of action against him but simply changes the burden of proof and imposes upon the indemnitee the necessity of again litigating and establishing all of the actionable facts." 22 Cyc. of L. and P., 106. [8] It follows, from the foregoing discussion that the indemnitee was not bound to submit to a suit before paying the amount for which he was liable. This matter is settled by the provisions of our Code which we have cited above. Of course, if the person indemnified pays any sum upon the theory that he is liable as a stockholder to make such settlement, he is bound to show in a suit against the indemnitor that the liability existed, and that he was under obligation to pay it. This is the burden which he assumes, but he is not bound to await and to defend an action intended to fix his liability as a stockholder before he may seek relief on his rights existing under the contract of indemnity. and the lessee should be relieved of his liabilities thereunder, the lessee who removed a building in compliance with an ordinance adopted more than two years after the making of the lease, thereby terminated the lease, though the removal might have been deferred for a few months without subjecting the lessee to the penalties prescribed by the ordinance. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 314, 315; Dec. Dig. § 101.*] In Bank. Appeal from Superior Court, City and County of San Francisco; J. M. Seawell, Judge. Action by H. H. Bancroft and others From a against Goldberg, Bowen & Co. judgment for plaintiffs, defendant appeals. Reversed, with directions. Goodfellow, Eells & Orrick, of San Francisco, for appellant. Philip Bancroft, of San Francisco, and H. W. Ballantine, of Los Angeles, for respondents. PER CURIAM. The following statement of facts, which is sustained by the record, is taken from the opinion of the District Court of Appeal for the First District in this case, filed December 27, 1912: This is an appeal from a judgment against defendant taken more than 60 days after the entry of judgment, which was for the principal sum of $750, and interest in the sum of $50.30 and costs. Plaintiffs on the 30th day of June, 1906, by a written instrument of said date, leased to defendant, a corporation, certain premises, at a monthly rental of $750 per month, until the 30th day of June, 1911. The lease contained the following provision: "It is furthermore understood that, as the said party of the second part has erected a building upon said premises at its own expense, the said building will, at the termination of this lease be and remain the property of the party of the second part. Moreover, it is expressly stipulated, that should that part of said building situated on the premises described on page one (1) of this lease, as distinguished from that part of the building situated on the land described on page two (2), be destroyed by fire or be torn down in pursuance of a municipal order, or a law or ordinance, at any time after two years from date, this lease shall immediately terminate, and the party of the second part shall be relieved of all its rights and liabilities thereunder." The premises were and are within the fire limits of the city and county of San Francisco as established by an ordinance duly adopted by the board of supervisors of said city and Rehearing Denied Dec. 27, 1913.) county of San Francisco at some time prior LANDLORD AND TENANT ( 101*)-LEASE- to the erection of the building thereon. This CONSTRUCTION-LIABILITY OF PARTIES. building was a wooden structure, and was Where a lease provided that if any build- erected by defendant on said premises being situated on the premises should be torn tween the 18th day of April and the 30th day down "in pursuance of a municipal order, or a law or ordinance, at any time after two years" of June, 1906. The building was also erected from the date of the lease, it should terminate, in violation of the provisions of a general The judgment is affirmed. We GAN, J. concur: (166 Cal. 416) HENSHAW, J.; LORI BANCROFT et al. v. GOLDBERG, BOWEN building ordinance of the city and county of | fine and imprisonment in the event of his San Francisco, adopted on February 5, 1903. This ordinance, as well as the ordinance fixing the fire limits, prescribes a penalty for any violation thereof. In January, 1909, an ordinance, No. 333, was adopted by the said board of supervisors, requiring all buildings erected prior thereto and subsequent to April 18, 1906, in violation of and contrary to the laws and ordinances of the city and county, to be demolished or removed on or before May 1, 1910. In April, 1909, the board of public works by order directed its inspector to serve notices for the removal of buildings as required by ordinance No. 333, which was done, and defendant was accordingly, on the 20th day of September, 1909, served with notice to demolish or remove its said building on or before May 1, 1910. In the month of November, 1909, defendant tore down the said building, and on the 30th day of November, 1909, abandoned the premises, and has paid no rent therefor since. The action was for the rent for December, 1909, and for which recovery was had as prayed for. It should be added that ordinance 333 required the board of public works to serve notice upon all owners and lessees of property affected by the provisions of the ordinance, and required said board to enforce the provisions of the ordinance and to demolish or remove any building or structure affected by the ordinance, upon the failure of the owner or his agent to comply with its terms, at the cost of the owner, and made it a misdemeanor for any person, etc., to fail to comply with the provisions of the ordinance. The ordinance was made to take effect immediately. failure to so demolish or remove it. The ordinance was a declaration of the policy of the board of supervisors that all temporary wooden buildings erected in violation of law within the fire limits after the great conflagration of April 18, 1906, to answer the immediate necessities of the people of the city, should be demolished or removed as speedily as was practicable, the date of May 1, 1910, being fixed as the limit within which such tearing down or removal must in any event be completed by the owner. It was a declaration to the effect that all such buildings so erected in violation of law were a menace to the safety of the city, no longer finding any possible warrant in the necessities of the people, and that they constituted public nuisances which should be abated as soon as was reasonably possible, in any event by May 1, 1910. Being officially notified of the action of the board of supervisors in this behalf, and served with notice to comply with the terms of the ordinance, the defendant demolished the building, as it was required to do. We do not see how it can be held otherwise than that this action on its part was "in pursuance of a municipal order, or a law or ordinance." That such action might have been deferred for a few months without subjecting defendant to the penalties prescribed by the ordinance of January, 1909, does not make it any the less action "in pursuance of" such ordinance. As suggested in appellant's brief, the tearing down of the building at any time after the adoption of the ordinance of January, 1909, "would be in compliance with both the letter and the spirit of the ordinance, and in furtherance of public It is claimed by defendant that the lease and private duty." Taking the language of was terminated according to its terms upon the lease literally, there would appear to be the destruction of the building in November, no question that the tearing down of the 1909. We are of the opinion that this claim building was in pursuance of the ordinance of must be held to be well based. The build- January, 1909, and that it terminated the ing was torn down more than two years lease. Under the circumstances there is nothafter the date of the lease, and, under the ing unreasonable in this construction, and to terms of the lease, the only question in this give the language a different construction connection is whether it was torn down would require the interpolation in the lease "in pursuance of a municipal order, or a law of words not written in the lease. The case or ordinance," within the meaning of those of Levin v. Pabst Brewing Co., 131 Pac. 118, words as used in the lease. The building is somewhat in point, and supports our conwas torn down by its owner, the lessee, inclusion herein. compliance with the provisions of an ordinance adopted more than two years after the execution of the lease, requiring all buildings erected subsequent to April 18, 1906, in violation of the existing laws of the city and county, to be demolished or removed on or before a certain date. This ordinance made it the duty of the owner of any building so erected to demolish or remove the same, and such owner was required to remove the same "on or before" a prescribed date, and was made subject to a penalty of In view of our conclusion upon the point discussed, it is unnecessary to notice the other contention in support of the claim that a reversal should be had. Upon the findings judgment should have gone for defendant. The judgment is reversed, and the trial court is directed to enter judgment in favor of defendant upon the findings already made. BEATTY, C. J., does not participate in the foregoing. ISSUES-SUFFICIENCY. Findings on issues not made by the pleadings will not support a judgment. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 935-938; Dec. Dig. § 396.*] 2. TRIAL (§ 396*)—FINDINGS—APPLICABILITY TO ISSUES. In an action between a husband and wife, the complaint counted on an agreement whereby the husband was to furnish money for the improvement of the wife's property, and, in return, was to become entitled to an interest therein. The answer denied the agreement, and alleged that the moneys furnished had been gifts. Held, that the sole issue raised by the pleadings was whether the moneys furnished had been paid under the agreement alleged, and hence findings that the moneys had been loaned were without the issues and would not support a judgment for money loaned. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 935-938; Dec. Dig. § 396.*] 3. JUDGMENT (§ 251*) — RELIEF-CONFORMITY TO ISSUES. Under Code Civ. Proc. § 580, providing that the court may grant the plaintiff any relief consistent with the complaint and embraced within the issues, the relief must be consistent with the case made by the complaint, and relief entirely outside the issues cannot be granted. [Ed. Note.-For other cases, see Judgment, Cent. Dig. 437; Dec. Dig. § 251.*] Department 1. Appeal from Superior Court, Los Angeles County; Walter Bordwell, Judge. Action by Alonzo G. Simmons against Charlotte Simmons. From a judgment for plaintiff, defendant appeals. Reversed. Swaffield & Munholland, of Los Angeles, for appellant. Geo. M. Holton, of Los Angeles, and Newman Jones, of Riverside, for respondent. SLOSS, J. The defendant appeals from a judgment whereby plaintiff recovered of defendant the sum of $1,000, with interest. The evidence is brought up by a bill of exceptions. The nature of the action is fairly defined in the following statement, made by plaintiff's counsel at the opening of the trial: "This," it was said, "is a suit brought by the plaintiff to obtain the decree of this court to the effect that certain property is community property. The legal title is in the wife. The husband is plaintiff. He seeks the decree of this [the superior] court that the property is community property by virtue of an agreement between the parties at the time when he put in some $5,000 or $6,000 into the property." The complaint alleges that the parties are husband and wife, having intermarried in April, 1906. At the time of the marriage the defendant owned, as her separate property, a lot of land in the city of Long Beach. The lot, with the improvements thereon, was worth about $4,000, and was subject to an The incumbrance of $1,500. At the time of the marriage, it is alleged, the parties agreed that plaintiff would furnish to defendant money's equal to the value of her said lot, less the incumbrance thereon, with which to build a dwelling house on said lot, and that the lot, with such house and other improvements, should thereafter be the community property of plaintiff and defendant. plaintiff alleges that he has performed the agreement on his part, that he furnished the defendant with about $5,600, with which she erected a dwelling house on the lot, but that the defendant repudiates the agreement, denies that the lot is community property, and claims that it, with the improvements, is her separate property, and that plaintiff has no interest therein. The prayer is for judgment that the lot is community property, that defendant be enjoined from selling or incumbering the same, and for general relief. By her answer, the defendant alleges that the lot, at the time of the marriage, was worth $6,500, and denies the making of the agreement set up in the complaint. She alleges that after the marriage the plaintiff made various gifts of money to her, and that she used a portion of said moneys in the erection of a dwelling house on said lot, and that it was understood that the house so erected should become a part of the land, and be defendant's separate estate. The answer admits that defendant has used a part of the moneys given her by plaintiff in erecting a house on the lot, admits that she claims said lot and improvements as her separate property, and that she denies that plaintiff has any interest therein. The court made findings as follows: The facts alleged in the complaint regarding the marriage, defendant's separate ownership of the property, and its value at the time of the marriage were found to be true. The allegations that an agreement had been made, providing that money should be furnished by plaintiff, and that the lot should become community property, was found to be untrue. It was found that within two years the plaintiff had loaned the defendant $1,000, which, with other moneys, she had expended in building a dwelling on the lot. All other money's paid by plaintiff to defendant were found to be gifts, and the land, with its improvements, and all moneys except the said $1,000 were found to be separate property of the defendant. From these facts the court drew the conclusion of law that the plaintiff was entitled to recover $1,000 from the defendant, and judgment was entered accordingly. [1] The appellant makes the contention that the finding upon which the judgment rests, i. e., that the plaintiff loaned $1,000 to the defendant, is outside of the issues presented by the pleadings, and hence does not authorize the judgment. The rule is well settled in this state that findings on issues not made by the pleadings must be disregarded, and cannot furnish support for a judgment. Burnett v. Stearns, 33 Cal. 469; Gregory v. Nelson, 41 Cal. 279; Morenhout v. Barron, 42 Cal. 591; Ortega v. Cordero, 88 Cal. 221, 26 Pac. 80; Reed v. Norton, 99 Cal. 617, 34 Pac. 333; Elmore v. Elmore, 114 Cal. 516, 46 Pac. 458; Crescent Lumber Co. V. Larson, 135 Pac. 502. [2] It cannot be doubted that the issue whether money had been loaned by plaintiff to defendant was not among those raised by the pleadings. The complaint counted upon an agreement whereby plaintiff was to furnish money for the improvement of defendant's property, and, in return therefor, was to become entitled to an interest in the property. The purpose of the action was, as declared in the opening statement, to obtain a decree establishing that interest. The answer denied the agreement. While it admitted that moneys had been furnished, it asserted that they had been transferred as gifts, and not under the contract set up by plaintiff. The sole question raised by these pleadings was, then, whether the moneys furnished by plaintiff had been paid by him under the agreement on which he relied, or had been given by him to defendant. If the agreement had been established, plaintiff would have been entitled to judgment declaring his interest in the property as claimed by him. The court finding that there had been no agreement, plaintiff was not entitled to relief. The defendant's averment that the moneys received by her were gifts was an incidental part of her denial that they had been furnished to her under the contract which plaintiff alleged. The finding that plaintiff had loaned defendant $1,000 was not responsive, either to any issue made by the pleadings or to the theory upon which the case was made and tried. The situation is closely parallel to that presented in Elmore v. Elmore, supra. There an action had been brought by the administratrix of a deceased wife against the husband. The complaint alleged that the deceased had furnished money to the defendant as her agent and trustee to purchase property for her; that he had made purchases, paying therefor in part with the money so furnished. The prayer was for an accounting and a conveyance of the property acquired with the money of deceased. The court found against the allegations of agency and trust, but entered a personal judgment against the defendant for $6,500, the amount of money received by defendant from his wife. The judgment was reversed, on the ground that it was based upon a cause of action not set up in the complaint. right to judicial redress were established, and the court merely held that the inability to give a particular kind of redress did not prevent the giving of such redress as was proper. The relief was always "consistent with the case made by the complaint and embraced within the issue." Code Civ. Proc. § 580. Here, however, as we have seen, the relief granted was inconsistent with the complaint, and was entirely outside the issues. The judgment is reversed. We concur: SHAW, J.; ANGELLOTTI, J. (166 Cal. 426) PARKSIDE REALTY CO. v. MacDONALD et al. (S. F. 6,107.) (Supreme Court of California. Dec. 1, 1913. Rehearing Denied Dec. 31, 1913.) 1. VENDOR AND PURCHASER (§ 82*)—MODIFICATION OF CONTRACT. Where parties to a contract on June 9, 1904, agreed, one to sell and the other to buy real estate, an agreement on July 14th, signed only by the seller and merely extending the terms of the previous contract for the benefit of the seller, was not a new contract but a mere modification of the terms of the old one. Purchaser, Cent. Dig. §§ 138, 139; Dec. Dig. § [Ed. Note.-For other cases, see Vendor and 82.*1 2. VENDOR AND PURCHASER ( 231*)—BONA FIDE PURCHASER-CONSTRUCTIVE NOTICE. An instrument not entitled to record, although recorded, is not constructive notice. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513–539; Dec. Dig. 231.*] 3. VENDOR AND PURCHASER (§ 231*)—BONA FIDE PURCHASER-ACTUAL NOTICE. The record of an instrument not entitled to go upon record may impart actual notice to one who has seen it of record. Purchaser, Cent. Dig. 88 43, 55, 487, 513-539; Dec. Dig. § 231.*] [Ed. Note. For other cases, see Vendor and 4. PLEADING (§ 376*)-ISSUES-TENDER-ADMITTED FАСТ. Where the cross-complaint, in an action to quiet title, averred that, immediately upon notice that the title had been perfected, the purchaser tendered the balance of the purchase price and demanded a conveyance, and the fact of tender was not denied but was admitted by stipulation, it was not necessary to consider as a tender. whether the purchaser's letter was sufficient [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1225-1227; Dec. Dig. § 376.*] 5. VENDOR AND PURCHASER (§ 170*)-TENDER -INTERVENING PURCHASERS. A purchaser was not bound to tender any although he knew that the vendor's deeds had of the purchase money to a vendor's grantees, been delivered to them, since there was no privity of contract between himself and them. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. 88 344-348; Dec. Dig. § 170.*] [3] Respondent cites a number of cases laying down the rule that a court of equity will give relief by way of money damages where, for any reason, the equitable relief 6. VENDOR AND PURCHASER ( 102*)-CONTRACT-ABANDONMENT. sought cannot be granted. But in every such The fact that a vendor, pending the concase facts alleged as giving the plaintiff a tract, had transferred the land to third parFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes ties was not, in and of itself, an abandonment | tiff and against Catherine Black and others. of the contract with the purchaser. Judgment for MacDonald on his cross-com[Ed. Note. For other cases, see Vendor and plaint, and the defendants thereto appeal. Purchaser, Cent. Dig. §§ 175-177; Dec. Dig. § 102.*] 7. Vendor and PURCHASER (§ 170*)-NECESSITY OF TENDER. For a purchaser to put the vendor in default it is necessary for him to make a tender of the balance to the vendor. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 344-348; Dec. Dig. § 170.*] 8. APPEAL AND Error (§ 173*)-NECESSITY OF OBJECTION BELOW. The objection that a purchaser's offer to perform was not made with sufficient detail cannot be made for the first time on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.*] 9. APPEAL_ AND ERROR (§ 173*)-DEFENSES BELOW-LACHES-NECESSITY. While the defense of laches need not be pleaded and the court may, in a proper case deny relief on that ground sua sponte, yet, where the trial court's attention has not in some way been called to that subject, an appellant may not ask relief on appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.*] 10. SPECIFIC PERFORMANCE (§ 105*) - REMEDIES OF PURCHASER-LACHES. The parties to a contract for the sale of land extended its terms to enable the vendor to quiet title, and after a decree quieting title was entered December 20, 1904, on service of summons by publication, notice thereof was given to the purchaser within 30 days, who, after advice of counsel that title was satisfactory, on March 15, 1906, tendered the balance of the purchase price, and though sued by the vendor March 29, 1906, did not ask affirmative relief by cross-complaint until November, 1909. Held, in view of the purchaser's record of the contract, the vendor's failure to tender a deed or to rescind the contract, and the absence of any prejudice to third parties, that the purchaser was not guilty of such laches as would bar a recovery. Affirmed. J. J. West, of San Francisco (Morrison, Dunne & Brobeck, of San Francisco, of counsel), for appellants. U. S. Webb and W. H. Cobb, both of San Francisco, for respondent. MELVIN, J. The plaintiff and all of the defendants, except the successful cross-complainant L. D. MacDonald, appeal from the judgment and from an order denying their motion for a new trial. In March, 1906, the plaintiff commenced an action against MacDonald to quiet its alleged title to 33 lots in Outside Land Block 1158, situated in the city and county of San Francisco. Defendant MacDonald demurred, and, the records of the case having been destroyed by fire, an amended complaint was filed, pursuant to stipulation of the parties, on the last day of October, 1906. To this complaint MacDonald filed an answer and later a cross-complaint, wherein he made the plaintiff and all of the other appellants now appearing here defendants. In his crosscomplaint he alleged that he had purchased the 33 lots from E. J. Lynch under a contract of sale; that he had offered to carry out the said contract but had been prevented from doing so by Lynch; that he was and always had been ready, able, and willing, since the balance of the purchase price under the contract had been due, to pay the same and receive a conveyance of the property; and that the plaintiff, Parkside Realty Company, and all of the other defendants to his crosscomplaint had taken their deeds to the property with full knowledge of and subject to his rights. All of the interested parties an [Ed. Note.-For other cases, see Specific Per-swered the cross-complaint, and upon the formance, Cent. Dig. §§ 325-341; Dec. Dig. 105.*] 11. VENDOR AND PURCHASER (§ 133*)-VENDOR'S TITLE-SATISFACTION OF PURCHASER. Where a vendor agreed to make his title satisfactory to the purchaser and his attorney, the question was not whether the title was in fact a good or marketable title but whether it was acceptable to the purchaser and his attor ney. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 234-237; Dec. Dig. § 133.*] 12. JUDGMENT (§ 142*)-SETTING ASIDE JUDGMENT STATUTE. Under the express provisions of Code Civ. Proc. § 473, a person served by publication may come in at any time within a year and have the judgment set aside and defend. issues joined a trial was had with the result that the court found the said MacDonald to be the owner of said property, entitled, upon depositing with the clerk of the court the balance due under the contract, to a conveyance thereof from all of the appellants. The original contract between MacDonald and Lynch was made June 9, 1904. By it MacDonald bought from Lynch the property in question for $2,600, paying $100 at the time and agreeing to pay the balance on or before July 9, 1904, should the title prove satisfactory. MacDonald was to have 30 days for the examination of the title, and in case it should prove unsatisfactory Lynch was to have 30 days to clear it. Time was of the essence of the contract, and the $100 paid thereon was to be forfeited in case of default in payment of the balance due after the title should be perfected. Within the 30 days allowed under the contract, MacDonald Action by the Parkside Realty Company found the title to be defective. Lynch, realizagainst L. D. MacDonald, with cross-com- ing that it would be impossible to overcome plaint by defendant MacDonald against plain- the objection to the title within 30 days, [Ed. Note. For other cases, see Judgment, Cent. Dig. § 253; Dec. Dig. § 142.*] Department 2. Appeal from Superior Court, City and County of San Francisco; J. J. Trabucco, Judge. |