there said that disputable presumptions are evidence the weakest and the least satisfactory. As a proposition of universal application this is not true. It was pointed out in Hitchcock v. Rooney, 171 Cal. 285, 289, [152 Pac. 913], that disputable presumptions "have such force as may in some cases outweigh positive evidence against them and sometimes such presumptions as we are here considering require clear and convincing evidence to overcome them." (Citing cases.) The disputable presumption here was that arising from the promissory notes admittedly signed by defendant. Facts were submitted by defendant tending to show want of consideration and failure of consideration and the instruction placed upon the jury the duty of determining the issue. The statement of the court which we think incorrect as a general proposition could not have been prejudicial for the fact was admitted out of which the presumption arose-namely, that defendant did, in fact, execute the notes.

We discover no prejudicial error in the instruction given as to where the burden rested of showing want of consideration for the notes. Nor do we think the court erred in instructing the jury that the fact that defendant was paid a salary of one hundred dollars for his services as secretary of the company constituted no consideration for the notes. There was no evidence, so far as we can discover, tending to show that this salary in any way induced defendant to make these notes.

The many angles to this case must be our apology for the unusual length of the opinion. We may be mistaken in our treatment of some of the phases of the case, but as to the verdict, we are convinced that it finds support in the evidence. And as to the rulings of the court and its instructions, whatever of error there may be, we cannot say "after an examination of the entire cause, including the evidence, that the error complained of has resulted in a miscarriage of justice." (Const., art. VI, sec. 42.)

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 11, 1917.

[Civ. No. 1795. First Appellate District.-November 14, 1916.]

GEORGE W. MCGINN, etc., Appellant, v. W. S. PRITCHARD et al., Respondents.

STREET IMPROVEMENT-CONTRACT FOR WORK-EXECUTION BY HOLDER OF CONTRACT TO PURCHASE LIEN INVALID AGAINST OWNER.- The holder of a contract of purchase of a lot of land cannot impress the land with a lien for street improvements which shall be binding upon the owner thereof, in the absence of proof that such owner has by his conduct so far concurred in such improvement as to be estopped to deny the validity of the lien.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. E. P. Mogan, Judge.

The facts are stated in the opinion of the court.

J. T. Williams, and John D. Harloe, for Appellant.

H. M. Owens, for Respondents.

THE COURT.-This is an appeal from a judgment in favor of the defendants J. Maud Giles and Maurice Rosenthal, sued under the fictitious names of Jane Doe and John Doe, in an action brought to foreclose a lien for street work. The abovenamed defendant J. Maud Giles was the owner of the property to be affected by this lien on the sixth day of December, 1911, and on that day entered into a contract with W. T. Pritchard for the purchase by the latter of said property, by the terms of which said Pritchard went into possession of the same. While so in possession of said property under said contract of purchase, Pritchard entered into a contract with the plaintiff herein for the doing of certain street work in front of said property, which work said plaintiff thereafter did. The defendant Pritchard, however, defaulted in the performance of his contract of purchase and abandoned the same, and the defendant Giles thereafter conveyed the property to Maurice Rosenthal. Upon the completion of the street improvement in front of said property by the plaintiff he filed his claim of lien therefor, and in due course brought this action to foreclose the same. The trial court rendered judgment against said Pritchard for the contract price of said

street improvement, but refused to enforce a lien against the property.

The only question raised upon this appeal is as to whether the holder of a contract of purchase of a lot of land can impress the land with a lien for street improvements which shall be binding upon the owner thereof. The case of Santa Cruz Rock Pavement Co. v. Lyons, 117 Cal. 212, [59 Am. St. Rep. 174, 48 Pac. 1097], is decisive of this question; and it was there held that it was no more within the constitutional power of the legislature to authorize the reputed owner of a lot or parcel of land to create a lien thereon against the will of the real owner than it would be to authorize such reputed owner to transfer the title to said land. It has also been frequently held in other jurisdictions that one who is in possession of land under a contract of purchase cannot subject such land to a lien for improvements upon the property or upon the street adjacent thereto, in the absence of proof that the real owner of the premises has by his conduct so far concurred in such improvement as to be estopped to deny the validity of the lien. (Johnson v. Soliday, 19 N. D. 463, [126 N. W. 99]; Callaway v. Freeman, 29 Ga. 408; Wilkins v. Litchfield, 69 Iowa, 465, [29 N. W. 447]; Jones on Liens, 3d ed., sec. 1247.) The record in this case presents no evidence of such estoppel, and it therefore follows necessarily that the judgment should be affirmed. It is so ordered.

[Civ. No. 1538. Third Appellate District.-November 14, 1916.] WILEY B. ALLEN COMPANY (a Corporation), Appellant, V. THAMA M. WOOD, Respondent.

APPEAL ORDER DENYING NEW TRIAL-EFFECT OF CODE AMENDMENT— NONAPPEALABLE ORDER.-Under the amendment of 1915 to section 956 of the Code of Civil Procedure, no appeal lies from an order denying a motion for a new trial, but the points made before the trial court in support of the motion may be reviewed on an appeal from the judgment. ID.-AGENCY-AUTHORITY OF LOCAL MANAGER OF PIANO COMPANY.-A local manager of a piano company who has authority in making sales of pianos to accept second-hand pianos in part payment and to receive money for the company from its patrons and to execute

and deliver receipts therefor in its name, has not the implied authority to satisfy an indebtedness of a purchaser of a piano to the company by assuming himself personal liability for such indebtedness, in consideration of the settlement of his own personal indebtedness to such purchaser. ID.-CONDITIONAL SALE OF PIANO-RECOVERY OF POSSESSION-RENDITION OF STATEMENTS-LACK OF FORFEITURE.-The right to recover the possession of a piano sold under a contract, which provided that title to the instrument should remain in the seller until paid for in full, and that should there be any default in payments the seller should immediately have the option to enforce payment of the whole amount or retake the instrument, is not forfeited by the rendition, after the commencement of the action to recover such possession, of monthly statements to the purchaser of the installments due accompanied with demands for their payment.

APPEAL from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. Charles O. Busick, Judge.

The facts are stated in the opinion of the court.

Fred J. Goble, for Appellant.

White, Miller, Needham & Harber, for Respondent.

HART, J.-This is an action in replevin and arises out of a conditional sale of a piano to the defendant by the plaintiff. The contract for the sale was reduced to writing and was entered into by the parties at the city of Sacramento on the fifth day of June, 1913, and the agreement was so dated. The agreement is in substance as follows: That the defendant was to pay the plaintiff the sum of one thousand dollars, at the latter's office, in the city of San Francisco, for said piano as follows: A "Star Piano Oak," etc., valued at three hundred dollars; two hundred dollars on the fifth day of June, 1913, and $20 or more every month thereafter, beginning on July 1, 1913, with interest at the rate of eight per cent per annum on balance remaining unpaid, interest payable at expiration of the contract. The agreement expressly stipulates that the title to the said piano shall remain in the plaintiff "and under its direction until paid for in full"; that should there be any default by the defendant in the payment of any one of the monthly installments as above specified, "then the whole

amount of this contract becomes at the option of the Wiley B. Allen Company immediately due and payable, it being elective with the Wiley B. Allen Co. to enforce payment or retake the said instrument.'

The contract contains many other provisions which are not particularly material to the questions submitted by this appeal.

The complaint alleges that on the tenth day of April, 1914, the defendant made a payment of $40 on said piano under the terms of said agreement, but that since the payment of the said sum of $40 on said date, the defendant has wholly failed and refused to make any other or further payments in accordance with the terms of the said contract; that after the payment of the said sum of $40 further monthly payments in the sum of $20 each became due, and that the plaintiff made demand upon the defendant for the payment thereof, and that the defendant failed and refused and still fails and refuses to pay the same; that the defendant refused, prior to the commencement of this action, to proceed further with said agreement. It is alleged that the total amount paid by the defendant on said piano under the terms of the said agreement is $690 and no interest, and that, at the time of the commencement of this action, there was due the plaintiff under the said agreement the sum of $310 and interest, amounting, to September 1, 1914, to the sum of $38.81.

The prayer is for a return of the piano, or in case return thereof cannot be had, for the sum of one thousand dollars, the alleged value thereof.

The answer admits the agreement and that title to the piano remained in the plaintiff, but that such title was at all times since the execution of said written agreement, subject to the rights thereunder of the defendant; denies all the other vital averments of the complaint, and alleges that the total amount paid by defendant on said piano under said agreement is the sum of $990. After filing the answer, the defendant filed the following supplemental answer:

"Now, the defendant above named, and by her supplemental answer to the amended complaint signed by Mr. Goble on file herein avers as follows: That subsequent to the commencement of this action, plaintiff waived any and all forfeitures claimed under the amended complaint in this action, and under the contract set forth as Exhibit One to the amended com