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and that the property upon which the trespass was committed by said defendants was the separate property of the plaintiff.” The court did not find the cause of their living separate and apart, and, unless the plaintiff is shown to be within the exception specified in section 370, her husband is a necessary party to any action brought by her other than such as pertains to her separate property. If the plaintiff is living separate and apart from her husband by reason of her own desertion of him, she cannot by herself maintain any action for damages to her person. The separate property of the wife is declared in section 162, Civ. Code, to be "all property owned by her before marriage, and that acquired afterwards by gift, bequest, devise or descent"; and section 164, Id., declares that “all other property acquired after marriage" by the wife is community property. Whatever may be the law in other states, in this state the separate property of the wife, which is acquired by her after marriage, is limited to such as she acquires by "gift, bequest, devise and descent." As a right of action for damages for a personal injury is not acquired by either of these modes, it is a part of the "other property acquired after marriage,” and is therefore community property. In any action to recover such damages, the husband is a necessary party. McFadden v. Railway Co., 87 Cal. 464, 25 Pac. 681.

3. At the close of the testimony, the defendants presented to the court certain propositions, which they requested the court to declare as legal principles applicable to the facts of the case, and to render its decision in accordance therewith; and, upon the refusal of the court so to rule, they took exceptions, and have brought the matters here by a bill of exceptions. In New York, and perhaps other states, such practice is authorized by statute (Code Civ. Proc. $ 1023); but we are of the opinion that it is not authorized by the Code of Civil Procedure of this state. There is no express provision to that effect, and the provision that the decision of the court may be reviewed through exceptions taken to its rulings upon the admission of evidence during the trial, or through an exception to the decision itself, either on the ground of insufficiency of evidence or disregard of law, affords to the losing party ample opportunity for securing a proper consideration, by the trial court in the first instance upon a motion for a new uial, or by this court upon an appeal, of all the principles of law applicable to the facts of the case. If the facts found by the court do not under any principle of law sustain the judgment, this can be shown on appeal without any bill of exceptions setting forth the failure of the trial court to make application of the proper legal principles; and, if its decision upon any controverted question of fact results from a failure to properly apply the law applicable

thereto, or from a consideration of evidence not entitled to be considered, this error can be reviewed through a bill of exceptions in which is specitied such error of law, or that the evidence is insufficient, either by reason of its incompetency or irrelevancy, to sustain the decision. In the present case, after it had been shown that the plaintiff was a married woman, the objection to a recovery by her of any damages for injury to her person or character could have been presented upon making it to appear that evidence of such damage had been received in the case. Unless it was then made to affirmatively appear that this evidence had not been considered by the court, the award of damages to the plaintiff could be assigned as error. We are aware that in Touchard v. Crow, 20 Cal. 163, the court suggested that when a case was tried by a court without a jury, if counsel desired certain points of law to be considered as applicable to the facts established, the proper course would be to present them in the form of propositions; but it was not even suggested by the court that the refusal to entertain such propositions, or to rule upon them, could be made the subject of an exception, or afterwards incorporated into a bill of exceptions. This case was subsequently referred to in Estate of Page, 57 Cal. 238, and in Wilson v. Wilson, 64 Cal. 92, 27 Pac. 861, where some similar suggestions were made; but in neither of these cases was the question presented for decision or decided by the court. In each of them the procedure that had been adopted was held to be erroneous; and the suggestions of the court must be regarded as tentative rather than as a rule to be followed. In 1866 the legislature, by an amendment to section 180 of the practice act (St. 1866, p. 844), provided that parties to an action might request the court to make findings of fact upon designated points, and that an exception could be taken to the refusal of the court to make such findings; but this is the only approach to the practice taken in the present case that has ever been authorized in this state. This procedure ceased to be operative when the codes came into operation in 1872.

4. As the case is to be sent back for a new trial, certain errors of the court deserve to be noticed. The court should have excluded the testimony of the plaintiff and other witnesses concerning the condition of her health and strength subsequent to the date of the trespass. As we have shown above, damages for any injury to her person cannot be included with an action for damages affecting her property, and can be recovered only in an action wherein her husband is a party plaintiff. So, too, the evidence that shortly after the trespass the plaintiff left her house, and went elsewhere to reside, was improperly admitted. Upon the objection to this evidence by the defendants, the court ruled that it might be admitted "for what it is

worth." What the court meant by this ex- adopt the means which they employed for pression is not clear, but, as no limitation carrying out their purpose with reference to was placed upon the evidence, it must be him. Within this rule the defendants should deemed to have been admitted generally, and have been allowed to state the intention with to have been considered by the court in which they visited the premises of the plainits determination of all the issues which tiff. It is very probable that, in view of such evidence would tend to establish. Her what was in fact done and said by them after removal was no part of the res gestae con- they had reached the premises, a jury would nected with the trespass, nor does it appear not give much weight to their declaration that the removal was caused by reason of that their purpose was innocent. If a tresany injury to her house; and any personal pass was in fact committed, the actual daminjury sustained by her in the nature of fear age that was caused thereby would not be or timidity would not be an element of dam- diminished or increased by the character of age done to her property. The evidence the motives which actuated the trespassers; that her son left the house the next day was but, for the purpose of determining whether also immaterial. His leaving there was no punitory damages should be allowed, the part of the res gestae, nor could the plaintiff motive or intention with which the act was recover for any damages sustained by him. done became important. The court should also have excluded the The evidence of conversations had with evidence of the personal injuries sustained certain of the defendants in the absence of by her daughter Cora, even if, as suggested the others, subsequent to the occurrence, by the court in admitting this evidence, the should have been excluded. This evidence, defendants “were to blame for it.” The so far as it tended to show the purpose or plaintiff is not entitled to recover for such intention of any of the defendants, other injuries, and it appears that the daughter than the person making the statement, was herself had an action pending against the hearsay, and was incompetent to establish same defendants to recover for these inju- such intention or purpose. If the action were ries. The court should have allowed the de- against only the person making the statefendants to show by the daughter Cora ment, it would be admissible as an admission whether the arrest of her brother had been against himself; but, as in the present acthe subject of the discussion between her- tion there could be no severing of damages self and the plaintiff. Her answer to the against the several defendants, this evidence question would have tended to show the was improperly admitted. See People v. plaintiff's state of mind at the time of the Aleck, 61 Cal. 137; People v. Irwin, 77 Cal. trespass, and this was a circumstance proper | 494, 20 Pac. 56. to be considered in determining the cause of

It is claimed that the evidence fails to her fright at the time of the trespass.

show any right of recovery against the apThe court also erred in refusing to allow pellant Warren Kimball. As a new trial is the defendants to introduce evidence for the

to be had, it would not be proper to compurpose of showing their motives and pur- ment upon the sufficiency of the evidence to pose in going to the house of the plaintiff,

establish his liability. If, in fact, he did and doing what was there done. When this no act to promote or encourage the trespass, evidence was offered, the court said: "Such ånd was merely a spectator while it was beevidence, if offered, I could not consider in ing committed by others, he would not be mitigation of their damages; and I think, guilty of the trespass. In Cooper V. Johnin justice to all parties, that they should so son, 81 Mo. 489, the court said: “That one understand; and it should go to the higher was present and witnessed the trespass, but court with a clean record, knowing that I

neither by word, sign, nor act, nor in any had not taken that into consideration, so

other manner, signified his approval of it, that, if I err in the matter, it is presented

does not render him liable. He is not, by to the supreme court in a fairer way." In his mere silence, to be held as countenancing Dorsey y. Manlove, 14 Cal. 556, it is said: the act." His subsequent declarations of ap"When circumstances of aggravation are

proval do not make him liable. Cooley, given in evidence for the purpose of increas- Torts (2d Ed.) 146. ing the damages, it is not only improper, The judgment and order appealed from are but manifestly unjust, to exclude from the reversed, and a new trial granted. jury any circumstance connected with the commission of the act and explanatory of

We concur: BEATTY, C. J.; McFARLAND, the motives and intentions of the party com

J.; VAN FLEET, J. mitting it.” Such evidence would include the efforts of the defendants to obtain in

(105 Cal. 632) formation of the facts connected with the

PEOPLE v. AZOFF. (No. 21,168.) offense charged against the plaintiff's son, their belief of his guilt, and the intent with (Supreme Court of California. Jan. 17, 1895.) which they went to her house, whether to CRIMINAL LAW – MISCONDUCT OF JURORS-Read

ING NEWSPAPERS. annoy, oppress, frighten, or injure her, or

1. Code Civ. Proc. 8 657, subd. 2, which whether her son was the sole object of their

enacts that verdicts found by a resort to the visit, and the reason wbich induced them to

determination of chance may be impeached by

the affidavits of jurors, negatives all other ex- to impeach his own verdict. The reason ceptions to the rule that the affidavits or state

of this wholesome rule of law is too obviments of jurors are inadmissible to impeach their verdict. It is proper, on a motion for a

ous to require any explanation.' The same new trial in a criminal case, to reject affidavits rule was declared in Castro v. Gill, 5 Cal. of jurors showing that they had read newspa- 42, by Mr. Justice Ileydenfeldt. In Wilson per reports of the trial during its progress.

v. Berryman, 5 Cal. 43, the rule was again 2. Permitting the district attorney, on a motion for a new trial, to call jurors to show that

reiterated by Mr. Chief Justice Murray. they had read nothing which intluenced their In People v. Wyman, 15 Cal. 75, the verdict verdict, is harmless error, where there is no

was sought to be impeached upon the competent evidence before the court showing them guilty of such misconduct.

ground that it was not a fair expression of

the opinion of the jury, and the affidavit In bank. Appeal from superior court, San

of one of the jurors was relied upon for ta Cruz county; J. H. Logan, Judge.

that purpose. The opinion of the court was Anthony Azoff was convicted of murder in

delivered by Mr. Justice Cope, who said the first degree, and appeals. Affirmed.

“We have repeatedly decided that this canW. A. McGuire, for appellant. Atty. Gen. not be done.' Thus the law of this question Hart, for the People.

has become too firmly established in this

state to be disturbed by the judiciary, and TEMPLE, J. The defendant was convict- in order to effect a change it was found ed of murder in the first degree, and sen- necessary in 1862 to resort to legislative tenced to suffer death. The appeal is from action. This was done, and it was enacted the judgment, and from an order denying that verdicts found by a ‘resort to the de. a new trial, but no part of the evidence is termination of chance' might be impeached brought up; neither is there complaint of by the affidavits of the jurors. But it is arany ruling at the trial, nor of an instruction gued that, while such is the general rule at given or refused. The motion for a new common law, there are exceptions to it. trial was upon the ground of misconduct on Admitting this to be so, we answer, in the the part of the jury, in that they received first place, that the legislature of this state evidence out of court. Upon the hearing of has legislated in regard to those excepthe motion the court refused to consider the tions, and that such legislation has superaffidavit of a juror which tended to show seded the common law. By declaring in that the jury had read a newspaper report of what cases verdicts may be impeached by the trial, or to permit the jurors themselves the affidavits of jurors, the legislature, upto testify orally to the same effect, but did on the maxim, Expressio unius, exclusio permit the district attorney to read an atii- alterius est,' has declared that verdicts of a davit of a juror, and other jurors to testify, different class shall not be so impeached.” that nothing that they had read had inilu- The same rule was announced in People v. enced their verdict. The correctness of these Gray, 61 Cal. 164; People v. Deegan, 88 rulings is questioned by this appeal. The Cal. 602, 26 Pac. 500; People v. Murray, 94 question as to whether the affidavit of a juror Cal. 212, 29 Pac. 491. Nor is there anything will be received to impeach the verdict was against this position in the late case of very early considered in this state, and has People v. Stokes (Cal.) 37 Pac. 207. The been frequently passed upon, and always de question was not there involved. The quocided in the same way. The effect of the tition from Woodward v: Leavitt, 107 Mass. earlier cases cannot be better expressed 453, was to a different proposition. Nor is th:in in the language of Chief Justice San- there anything in the quotation inconsistent derson in Boyce v. Stage Co., 25 Cal. 460. with the rule which prevails in this state. He says: "In respect to these points this Here affidavits of jurors, in support of the case was decided upon the authority of verdict, may be read as to “the existence of Turner v. Water Co., 25 Cal. 397. We there the disturbing influence"; and the question held that, although there was some contlict in the case quoted was, how far such affof authority, * the aflidavits of ju- davits could be used in support of the verrors could not be received for the purpose dict. It was held in effect that such affiof impeaching their verdict. By so doing davits may be used to disprove or explain we did not establish the rule for the first alleged misconduct, but cannot, admitting time in this state; on the contrary, we mere- the misconduct, be used to show that the verly affirmed a rule which was established dict was not influenced thereby. as early as the first volume of California In some of the states different rules preReports, and has been strictly adhered to vail. All recognize the general proposition from that time to the present. In the case that the affidavits of jurors will not be reof People v. Baker, 1 Cal. 40), Mr, Justice ceived to impeach their verdict, but some Bennett said: "We consider it a settled exceptions are made. These exceptions vary rule, founded upon considerations of nec- greatly, hardly any two states agreeing as essary policy, that the testimony of a jury- to what exceptions shall be made. Our statman cannot be received to defeat his own ute makes one. Code Civ. Proc. $ 657, subd. verdict.' In Amsby v. Dickhouse, 4 Cal. 2. As we have seen, it has been held in 103. Mr. Chief Justice Murray said: “It is Boyce v. Stage Co., supra, that the fact that well settled that a juror cannot be allowed one exception is provided in the statute ex

cludes the idea that there can be any other. Other courts do not agree upon the exceptions which should be made to the rule, and, if the question were an open one, I think the rule established here is the best. Hardships will arise under either rule; but, while it will occasionally appear that justice will miscarry unless such evidence can be regarded, the contrary rule opens the door wide to corrupt practices. The jury will be subjected to influences, after they have discharged their duty as jurors, to induce them to repent of their decision and endeavor to revoke it. They would then be liable to be tampered with. Indeed, it would be difficult to place a limit to the corruption such a practice might engender. If public policy prohibits the jury from impeaching their verdict by their affidavits, it must follow that the same policy will prevent its being done by statements made by the jurors. The affidavit of McGuire, therefore, could not be considered on that question. In permitting the district attorney to call the jurors to show that they had read nothing which influenced their verdict, the court followed intimations found in People v. Goldenson, 76 Cal. 328, 19 Pac. 161, and People v. Murray, 85 Cal. 350, 24 Pac. 666. In the late case of People v. Stokes (Cal.) 37 Pac. 207, this court said that upon that point those cases do not express the law. Since there was no competent evidence before the court, on the motion for a new trial, tending to show that the jury had taken evidence out of court, this could be productive of no harm in this case.

There was no error in refusing to permit the trial judge to be sworn, on the hearing of the motion for a new trial, to show that he had admonished the bailiff not to allow the jury to read papers relating to the case. On this motion such admonition would cut no figure, and if the fact existed it was a matter within the knowledge of the court, and might have been stated as a fact in a bill of exceptions without proof. It was also not error here, because there was no competent evidence tending to show that the jury did read any account of the trial in a newspaper. The judgment and order are affirmed.

that the complaint sounds in replevin, which does not lie upon an unexecuted agreement for the sale of personal property, since the facts stated entitle plaintiff to damages for breach of the contract, irrespective of the prayer of the complaint.

3. Under a contract by which defendant agreed to assign to plaintiff a one-fourth interest in any mine purchased by him within a specified time, the fact that defendant purchas. ed a one-fourth interest in a mine, the ownership of which was evidenced, not by the legal title, but by certificates of stock showing a beneficial interest, does not enable him to evade his obligations to plaintiff, who accepts this purchase in fulfillment of the contract.

4. An allegation in the complaint that the stock was purchased in pursuance of the contract, and that plaintiff and defendant began to operate the mine as provided therein, shows that the price paid for the stock was “mutually satisfactory to the parties," as required by the contract.

5. A conflict in instructions given at the request of plaintiff and of defendant is no ground for reversal on appeal by defendant, where the error is in his favor.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Action by W. E. Dennison against E. W. Chapman for breach of contract. From a judgment for plaintiff, defendant appeals. Affirmed.

Maxwell, Dorsey & Soto and Maxwell & McEnerney, for appellant. Geo. A. Rankin, for respondent.

SEARLS, C. This is an action by W. E. Dennison, the respondent, against E. W. Chapman, the appellant, upon an alleged breach of a contract, by which the defendant agreed to purchase a mine for the joint benefit of plaintiff and defendant. Plaintiff had a verdict and judgment for $1,312.50 and costs. The appeal is from the final judg. ment, and from an order denying defendant's motion for a new trial.

On the 2d day of September, 1889, plaintiff and defendant entered into a written contract, by the terms of which defendant agreed (provided the purchase could be made at a price satisfactory to the parties, respectively) to purchase, within 30 days from the date of the agreement, the Rumfeldt Hydraulic Mine, situate in the county of Trinity, Cal. Upon such purchase being made, the plaintiff was to be placed in charge as superintendent for a term of one year, at a monthly salary of $150. Defendant was for the period of one year to reserve and carry for the plaintiff a one-fourth interest in the mine, and at or before the expiration of the year to give plaintiff a clear title to such onefourth interest at cost price thereof up to the time of conveyance, the defendant to be paid such cost price out of the proceeds of the mine. Defendant was to furnish plaintiff suitable quarters for himself and family. The agreement was to be a full settlement of all accounts between the parties up to the date of its execution, and $.500 paid by defendant to the plaintiff on the execution of

We concur: BEATTY, C. J.; MCFARLAND, J.; GAROUTTE, J.; HARRISON, J.; VAN FLEET, J.; HENSHAW, J.

(105 Cal. 447)

DENNISON v. CHAPMAN. (No. 15,525.) (Supreme Court of California. Jan. 5, 1895.) PLEADING-WAIVER OF OBJECTIONS-PERFORM

ANCE OF CONTRACT--INSTRUCTIONS. 1. All merely technical objections to a complaint are waived by failure to demur.

2. After answering to a complaint which states facts showing that plaintiff was entitled to certain corporate stock under a contract with defendant, that plaintiff had demanded it, and defendant had refused to deliver, and that plaintiff had been damaged in a certain sum by reason of such refusal, defendant cannot object

the agreement was to be considered as an ment thereto it was averred that, by reason advance on account of salary. Omitting of defendant's failure to deliver to plaintiff some minor provisions of the agreement, not said shares of stock, he was damaged in the essential to present purposes, it contains this sum of $62,400. The complaint averred that further clause: "It is further mutually W. S. Chapman was only a nominal party to agreed by the parties herein, respectively, the purchase of the stock; that defendant that should the said Rumfeldt Mine be not really owned the whole 50,000 shares purpurchased, then this agreement shall extend chased, and that plaintiff was entitled to and apply to any other mine or mines that one-fourth part thereof. This was denied by may be obtained by the said party of the first the answer, and it may be remarked here part, at prices mutually satisfactory to the that the uncontradicted evidence showed departies hereto, within ninety (90) days from fendant to be the owner of only one-half of the date of this agreement." The Rumfeldt the purchase, or of 25,000 shares of the stock. Mine, upon examination, proved unsatisfac. It followed that if plaintiff was entitled to tory, and was not purchased. 'There was in recover it was for one-fourth part of defendEldorado county, Cal., a gold-bearing quartz ant's purchase, equal to 6,250 shares. The mine known as the “Taylor Mine," owned shares were admitted by the answer to be by E. S. Chester and W. E. Straut, who, with worth $2 each. defendant and some others, organized a cor- Appellant urges certain objections to the poration under the name of the Idlewild Gold complaint, viz.: (1) That so far as it relates Mining Company, to which corporation the to the stock it sounds in replevin, which does Taylor Mine was conveyed. On the 9th day not lie upon an unexecuted agreement for of October, 1889, said Chester and Straut, as the purchase and sale of personal property. parties of the first part, entered intoan agree- (2) That the contract of September 2, 1889, ment with defendant and his brother, W. S. never became operative, for the reason that Chapman, which recited that there were 100,- no purchase of a mine ever occurred. (3) 000 shares of the capital stock of the Idle- That there is no allegation in the complaint wild Gold Mining Company, all of which that the Idlewild stock was purchased at were owned by the parties of the first part, prices mutually satisfactory. There was no of which they sold one-half, or 50,000 shares, demurrer interposed to the complaint. It to the Chapmans for $55,000, to be paid as follows, therefore, that all merely technical follows: $5,000 within 60 days, and the resi- objections are waived, and we have only due (less one-half of the expense of build- to determine whether the complaint states ing a mill or altering and adding to the capac- facts sufficient to constitute a cause of action. ity of a mill on the mine, and other speci- The prayer of the complaint was for judg. fied improvements to be placed thereon by ment against defendant for the possession the said Chapmans within 90 days) in three of the shares of stock, or their value, in the equal installments, at 12, 15, and 18 months, event possession cannot be had, in the sum respectively, etc. All the profits and divi- of, etc. Where, as in this case, there is an dends on the 50,000 shares of stock sold were answer to the complaint, the court may grant to go to the parties of the first part until the plaintiff any relief consistent with the they were fully paid, and the 50,000 shares case made by the complaint and embraced of stock was to be issued in the names of within the issue. Code Civ. Proc. $ 580. The the Chapmans, and deposited in escrow to complaint as amended, after setting out facts be held until payments were all made, and showing that he was entitled to the stock then delivered to the parties of the second under the coutkact, that he had demanded part, the said Chapmans, of whom defend it, and defendant had refused to deliver, ant was one. The complaint avers that the averred in apt terms that by such refusal he purchase by defendant of such interest in the was damaged in the sum of $62,400. These Taylor Mine was made under and pursuant facts were within the issues, and entitled to their agreement; that plaintiff and de- plaintiff to such judgment as he recovered, fendant began to operate the mine; that irrespective of the prayer of the complaint, plaintiff continued to operate and superin- provided always the evidence was sufficient

to uphold

his part performed all his obligations under As to the contention that the contract

the contract; that defendant failed to fur- never became operative, for the reason that nish any quarters for plaintiff and his fam- no mine was ever purchased by defendant, ily, and on the 1st day of October, 1890, de- we have only to turn to the complaint to fendant discharged him, and refused to de- see that it is charged that under the contract liver to him any share of the stock, etc. The one-half of the Taylor Mine was in effect answer denies that the purchase of stock in purchased, and that, the better to carry out the Idewild Gold Mining Company by de- the contract of purchase, a corporation was fendant was made under or pursuant or in formed, to which the mine was conveyed, fulfillment of his agreement with the plain- and the stock issued to the several parties tiff, or that plaintiff was ever superintend- in proportion to their interest, all of which ent of said mine, etc. The complaint averred appears from the contract (Exhibit A), made the value of 12,500 shares of stock to which a part of the complaint. This was in effect, he was entitled to be $62,500. By an amend-, although not literally, the purchase of a mine,

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