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for plaintiff, defendant Delaney appeals. Al- did not intend to ratify it so as to give it firmed.

validity, but ratified and confirmed it in S. W. & E. B. Holladay and Sawyer & Bur

its invalidity. The answer to such a propo

sition is found in the language used by Chief nett, for appellant. Sullivan & Sullivan, and

Justice Story in Wilkinson v. Leland, 2 Pet. Craig & Meredith, for respondent.

661: “This is a legislative act, and is to be HENSHAW, J. Appeal by the defendant interpreted according to the intention of the Delaney from the judgment and from the or- legislature upon its face. Every technical der denying him a new trial. The action was

rule as to the construction or force of the commenced by the city and county of San | particular terms must yield to the clear exFrancisco against the defendants named and pression of the paramount will of the legismany others to recover certain lands claim-lature. The only question, then, is, wbat is ed and held by the defendants adversely to

the intent of the legislature? Is it merely the city. The land claimed by appellant is

to confirm a void act so as to leave it void, part of the so-called “Lafayette Park." La--that is, to confirm it in its infirmity? Or is fayette Park was delineated and described as it to give general validity and efficacy to the a public park or squa re upon the Van Ness thing done? We think there is no reasonable map. The facts of this case are identical in

doubt of its real object and intent. It is not all essential particulars with those in the

an act of confirmation by the owner of the case of Hoadley v. San Francisco, 50 Cal. estate, but an act of confirmation of the 205, and Sawyer v. San Francisco, 50 Cal.

sale and conveyance by the legislature in its 370. The later cases of People v. Holladay,

sovereign capacity." The judgment and or 68 Cal. 442, 9Pac. 655; Hoadley v. San Fran- | der appealed from are affirmed. cisco, 70 Cal. 324, 12 Pac. 125; San Francisco v. Holladay, 76 Cal. 18, 17 Pac. 942; and Peo

We concur: TEMPLE, J.; McFARLAND, J. ple v. Holladay, 93 Cal. 244, 29 Pac. 54,follow and reannounce the rule of construction given to the act of the legislature rati

(106 Cal. 441) fying Ordinances Nos. 822, 845, and the Van HEWES v. GERMAIN FRUIT CO. (No. 19,Ness map, first declared by the cases re

535.) ported in volume 50 of our Reports. More- (Supreme Court of California. March 15, 1895.) over, the soundness of the construction put Contract or SALE-ACTION FOR BREACH-INTERby this court upon the ratifying act of the

EST-EVIDENCE, legislature of March 11, 1858, has been sub- 1. A contract for the sale of a crop of raijected to review by the supreme court of the

sins, to be cured, and delivered at the packing

house, does not require the raisins to be cured United States, which court, after quoting the

before being brought to the packing house, but opinion in Hoadley v. San Francisco, 70 Cal. is complied with where they are properly cured 324, 12 Pac. 123, says: “To this we agree.

and packed after arriving there. In short, the state refused to con

2. The title to a crop of raisins does not pass

to the buyer, under a contract requiring payfirm the ordinance so far as it had reference ment on delivery, so as to make it essential to to the grant by the city of any part of these a recovery by the seller for the buyer's failure squares; and congress in its conveyance fol

to accept the raisins that he shall have resold lowed in this particular what had been done by refused by the buyer on 'account of delay, after

them as pledged property, where the raisins were the state." Hoadley's Adm’rs v. San Francis- having been previously refused by him because co, 124 U. S. 645, 8 Sup. Ct. 659. It would not properly packed; but a private sale at the seem, therefore, that not only is the inter

highest price obtainable is sufficient.

3. Under Civ. Code, § 3287, making inter pretation put upon the- ratifying act by this est allowable on damages certain, or those ca pacourt sound and correct, but that the ques- ble of being made certain by calculation, in the tion of that interpretation is no longer an

absence of a well-known market price on which

to calculate the damages, the seller of fruit is open one. Yet the essential contention of ap

not entitled to interest before suit for a breach pellant is that the court was in error in these of contract by the buyer. cases. It is strenuously insisted that when 4. In an action for a breach of the purchasthe legislature ratified Ordinance 822, which

er's contract to accept grapes when delivered, a

contract between plaintiff and a third person, ratification took effect by relation as of the specifying the weight of the boxes and the date of the passage of said ordinance, it ex- grades to be made in packing, to which reference hausted its power, and the ratification of the

is made by the contract in suit, is admissible in

evidence. Van Ness map, though a part of the same

5. Admissions by an alleged agent, relating legislative enactment, was nugatory and in- to a past transaction, are inadmissible in evieffectual, because the Van Ness map had dence as against the principal, in the absence of been prepared and adopted after the time

any showing of authority in the agent to make

them. limited for its preparation and adoption by 6. In an action for a breach of contract to Ordinance 822; or, at least, that the ratifica- purchase raisins, a witness for plaintiff, who tion was nugatory and ineffectual so far as

states that he examined the fruit, and found it

in merchantable condition, and on cross-examconcerned the public parks or squares set ination states that he cannot tell the number of apart by said map. This, however, is logic- boxes he examined, may be asked on redirect ally a contention that the legislature, in rati

examination as to how the examination by him fying the Van Ness map, at the same time

compared with the ordinary examination by ex

perts, to ascertain the value or quality of the and with its ratification of Ordinance 822, raisins.

1 Rehearing denied

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Commissioners' decision. Department 2. , treatment in curing and packing, again tenAppeal from superior court, Los Angeles dered them to defendant, but, on account of county; Walter Van Dyke, Judge.

the delay caused by the failure of the plainAction by David Hewes against the Ger- tiff to perform his contract, the market had main Fruit Company for damages for breach depreciated; that they were not delivered of contract by defendant to purchase a crop at the packing house in good order, within a of raisins from plaintiff. From a judgment reasonable time, and defendant refused to for plaintiff, defendant appeals. Modified accept them. The cause was tried by the and affirmed.

court, and findings and judgment were for Chapman & Hendrick, for appellant. Allen

the plaintiff in $1,095.15, with interest there& Flint, for respondent.

on from March 6, 1887; and this appeal is

from said judgment, and an order denying HAYNES, C. This action was brought to defendant's motion for a new trial. recover damages, laid at $1,200, for an al- The specifications of error are to rulings leged breach by the defendant, a corporation, upon evidence, and that certain findings are of the following contract: “Tustin, Oct. 29, not justified by the evidence.

The excep'86. Agreement between David Hewes and tions to the third and fourth findings cover Germain Fruit Co., whereby said David the same point, and may be considered toHewes sells and Germain Fruit Co. buys the gether. The third is a general finding that crop of raisins owned by said D. Hewes plaintiff performed all the conditions of the (eight to ten thousand boxes, more or less, contract on his part, and the fourth specificsaid raisins being his entire crop of this sea- ally finds that on and prior to the 15th of son, say 5,000 boxes in warehouse, balance on December, 1885, the plaintiff caused all the ground being cured) at one 40-100 dollars per raisins to be cured, and packed at the packing box, packed and delivered; raisins now uncur- house mentioned, in good order, and in strict ed to be cured, and delivered at packing house accordance with the terms of the contract. in good order; raisins to be packed under The contention of appellant is, briefly statexisting contract with S. Ana Fruit Packing ed, that when plaintiff brought the raisins Co., subject to any mutual agreement made here in question to the packing house, they with Germain Fruit Co. as to any alteration were not sufficiently cured; that they were thereof. D. Hewes reserves the right to put afterwards removed, and subjected to further his stencil upon raisins when packed. Pay. treatment, after which they were packed. ments to be made as follows: Twenty-nine The evidence upon this point is to the effect ceuts per box to be paid to S. Ana Pkg. Co. up- that the raisins were taken from the trays in on delivery of each car load, balance of one the vineyard and put in "sweat boxes," and 11-100 dollars per box to be paid to D. Hewes brought to the packing house in the usual upon like delivery." The second amended

It was then found that some of complaint set out this agreement, and pro- them were not sufficiently cured, and these ceeded to allege as follows: "The plaintiff were selected out, put upon trays, and taken duly performed all the conditions of the said outside of the packing house, and exposed to contract on his part, and delivered to the de- the sun, and, when sufficiently cured, and fendant, and the defendant received, all the when all had gone through the sweating prosaid crop of raisins, excepting 2,905 boxes cess, were assorted and packed. Appellant's of the same, which said 2,905 boxes were in contention that they were not delivered at due time cured, and delivered in good order the packing house cured and in good order at the packing house referred to in said con- means, as is clearly disclosed by the special tract, and there properly packed and left in defense in the answer, that at the time they good order and condition, subject to order were brought to the packing house they were of defendant, prior to the 3d day of January, not properly cured, and in good order. The 1887, and the defendant duly notified thereof; language of the contract, “raisins now unbut the said defendant refused to accept the cured to be cured, and delivered at packing said goods, or to pay for them, pursuant to house in good order," was not intended to said agreement, to the plaintiff's damage in refer to their condition when brought to the the sum of $1,200.” A general demurrer was packing house, but the "delivery" there menfiled to this second amended complaint, but tioned refers to the delivery to the defendant, no ruling thereon appears of record. The which was to to be at the packing house, aftcomplaint is not a model of perspicuity, and er they were properly packed. It could make possibly a demurrer for uncertainty might no possible difference to the defendant whethhave been sustained, but we think a general er they were cured where they were grown or demurrer could not. The answer denied the at the packing house, if they were in fact performance of the contract, and alleged, for properly cured, packed, and afterwards dea separate defense, that the 2,905 boxes here livered to it in good order. That this is the in question "were not delivered at the pack- true construction of the contract is further ing house in good order, cured,” but that they apparent from the fact that the raisins, even were so poorly cured as to be unfit for the if properly cured upon the ground, are not market, and that defendant refused to ac- ready for packing when brought to the packcept or pay for the same; that plaintiff aft- ing house, but are first put through the sweaterwards removed them, and, after further ing process, which occupies from one week

manner.

I

to three weeks. The answer of defendant "title is transferred by an executory agreeclearly shows that it was the bad condition ment for the sale or exchange of personal of tl e raisins at the time they were brought property only when the buyer has accepted to the packing house that was relied upon, as the thing, or when the seller has completed the answer proceeds to allege that they were it, prepared it for delivery, and offered it to afterwards removed, and subjected to further the buyer with intent to transfer the title treatment, and packed, and that it then re- thereto in the manner prescribed in the chapfused to accept them, because not delivered ter on offer of performance." Civ. Code, & within a reasonable time, and “the market 1141. By section 1502, Cly. Code, "the title price of raisins had greatly depreciated." to a thing offered in performance of an obliThe evidence is quite sufficient to sustain the gation passes to the creditor, if the debtor third and fourth findings.

at the time signifies his intention to that efIt is contended that the sixth finding, so fect." I find nothing in the evidence which far as it finds that said 2,905 boxes of raisins signified plaintiff's intention, in tendering the were packed in good order "within a reason. raisins in fulfillment of his contract, to pass able time after the date of said contract," the title to the defendant. On the 2d of Deis not supported by the evidence. The con- cember the defendant, finding the raisins not tract fixed no time for the delivery of the perfectly cured, notified the plaintiff that it raisins then uncured. The time required for would not accept them. At that time all curing depended upon the state of the weath- had not been done by the plaintiff which the er, which is not always accurately predict- contract required him to do, and they were ed, even by the weather bureau. Nor does not ready for delivery, and hence the tender it appear that a longer time was required to after they were packed and ready for deliv. cure the selected portion at the packing house ery. The contract, however, made payment than would have been required in the field, by the defendant upon delivery a concurrent and hence it does not appear that the packing condition, and that condition was not waived. was or could have been thereby delayed. The The sale of such property in the manner in court found, not only that they were cured which pledged property is required to be sold and packed within a reasonable time, but that is not confined, however, to property the tithey were packed in good order; and this tle to which has passed to the buyer; but, finding is sustained by sufficient evidence. if the property is sold in that manner where Whether the answer raised an issue as to the title has not passed, such sale is conclutheir condition when packed and tendered to sive as to the value of the property, while, the defendant need not be considered. These if it is not so sold, the plaintiff must prove remarks also include the exceptions to the the value of the property to him; and this ninth, tenth, and eleventh findings.

value was found by the court upon sufficient The exceptions to findings 13, 15, 16, and evidence. Section 3353 of the Civil Code 17 may be considered together, and a general provides: "In estimating damages, the value statement made, instead of reciting the find- of property to a seller thereof is deemed to ings. On the 6th of March, 1887, the plain- be the price which he could have obtained tiff sold the 2,905 boxes in question for $2,- therefor in the market nearest to the place 971.85 at a private sale, and the court found at which it should have been accepted by that that was the full value of them, and the the buyer, and at such time after the breach best price at which they could have been of the contract as would have sufficed, with sold between the 2d of December, 1886, and reasonable diligence, for the seller to effect a the day they were sold, and that the amount resale." due to the plaintiff from the defendant under The seventeenth finding is to the effect the contract over the value of the same to that by the refusal of the defendant to take the plaintiff at all times between said dates and pay for 2,905 boxes of raisins it became was $1,095.15. There was no evidence con- indebted to the plaintiff in the sum of $1,tradicting the testimony of the plaintiff that 095.15, and appellant contends that there was he obtained the highest price for the raisins no evidence or allegation proving or tending in question for which they could have been to prove that defendant was “indebted" to sold, but it is contended that they should the plaintiff in any sum whatever on achave been sold in the manner prescribed by count of such refusal, and that the evidence the Code for the sale of pledged property; is insufficient to justify any finding of fact or and cite Civ. Code, $ 3019. This contention conclusion of law that the plaintiff was enis based upon the supposition that the title titled to recover interest upon any amount or or property in the raisins had passed to the for any time whatever. Section 3287 of the defendant, and that, therefore, he could not Civil Code is as follow: "Every person who dispose of them at private sale, or keep them, is entitled to recover damages, certain or and recover of the defendant the difference capable of being made certain by calculation, between the contract price and the value of and the right to recover which is vested in them to him under subdivision 2 of section him on a particular day, is entitled to recov. 3311 of the Civil Code. But the property in the er interest thereon from that day, except durraisins which were uucured did not at any ing such time as the debtor is prevented by time pass to the defendant. As to this part law or by the act of the creditor from paying of the crop the contract was executory, and the debt." It is quite clear that payment by uefendant to plaintiff at the date of the trial, It was not error to receive in evidence the or even upon the day the action was com- contract between the plaintiff and the S. A. menced, of the sum of $1,095.15, would not Fruit Co. It is referred to in the contract have been just and full compensation to the between plaintiff and defendant, and specified plaintiff for the detriment caused by defend. the weight of the boxes, and the grades to be ant's failure to accept and pay for the rai- made in packing, neither of which were statsins on December 20, 1886; but, unless this ed in the contract between them, and thus becase can be held to be within the provisions came a part of the contract. of the section last above cited, interest, eo Upon re-direct examination the plaintiff nomine at least, cannot be allowed, for by was asked if he had a conversation with Mr. section 3311, Civ. Code, which declares the ex- Simpson, the agent of the defendant, in the (ess of the contract price over the value of forepart of January, 1887, in relation to the the property to the seller, including the extra reason for its refusal to receive the raisins, expense of taking it to market, to be the counsel stating that they expected to show measure of damages, does not mention "in- that he said the fact that the market had terest," while section 3357, Id., provides as gone down was probably the reason. The follows: "The damages prescribed by this court admitted the evidence, over defendant's chapter are exclusive of exemplary damages objection. If this evidence could have any and interest, except where those are express- significance, it could only be as an admission ly mentioned.” In some jurisdictions it is made by the defendant, and it was not held, in cases of unliquidated damages, that shown that Simpson had authority to make though the jury may, according to their dis- any admissions as to a past transaction af. cretion, take into account interest as part of | fecting the defendant's liability. But, conthe damages, yet they cannot give it as in- ceding the error, the judgment should not be terest eo nomine; but our Code limits the dis- reversed for that reason. The fact proposed cretion of the jury in this regard. Section to be shown by the witness, and to which he 3288, Id., is as follows: "In an action for the testified, is no broader than the admission in breach of an obligation not arising from con- the last clause of defendant's answer, to the tract, and in every case of oppression, fraud effect that when the raisins were packed and or malice, interest may be given in the discretendered to defendant on account of the delay tion of the jury." Considering these several occasioned by plaintiff's failure to perform Code provisions together, we conclude that his contract within a reasonable time the where interest can be given it may be given market price of raisins had greatly depreciatas such; but as section 3311, Id., does not in ed, and defendant refused to accept them, or fixing the measure of damages in cases of pay for them. As the court found upon suffi. this character include interest, it cannot be cient evidence that the raisins were cured given, unless it can be held that the dam- and packed in good order within a reasonaages in this case were “capable of being ble time, the reason for the defendant's nomade certain by calculation"; and this we tice, given on the 2d of December, before the think could not be done. There are cases raisins were packed or ready for delivery, bewhich hold that when the measure of dam- came wholly unimportant; and, if the conages is the difference between the contract versation referred to the tender of the raisins and market prices at the date of the breach, after they were packed, and the second reinterest is to be added as a necessary item fusal, it was, in substance, a reiteration of in the estimate. See Van Rensselaer v. Jew- the answer, and harmless. ett, 2 N. Y. 136; Dana v. Fiedler, 12 N. Y. W. G. McPherson, called by the plaintiff, 40; note to Selleck v. French, 1 Am. Lead. testified that he examined the raisins in quesCas. 511; 1 Suth. Dam. (1st Ed.) 610; Id. (20 tion at the request of the plaintiff, and found Ed.) 88 317, 318; and Cox v. McLaughlin, 76 them in good, merchantable condition. Upon Cal. 60, 67, 18 Pac. 100, where some of these cross-examination he said he could not tell authorities are cited. Whether interest could the number of boxes he examined, but have been allowed if the complaint had al- thought as many as half a dozen, taking leged the market price at the date of the them from different parts of the pile. Upon breach, and demanded judgment for a spe.

a redirect examination he was asked: "How cific sum, being the difference between the did this examination compare with the usual contract and market prices, it is not necessary and ordinary examination by experts to asto consider; but it does not appear from the certain the value or quality of the raisins?" complaint or finding, unless inferentially, Defendant objected that it was irrelevant and that there was any established or reasonably immaterial. The witness answered that it well-known market price upon which a "cal- was the usual method. We do not perceive culation" could be based with sutficient cer- any error in overruling the objection. Such tainty to charge the defendant with a knowl- examination, whatever its character, as is edge of it; so that it is not clear, even if we usually made by experts to determine the were at liberty to follow the New York au- quality, and upon which they act in matters thorities, that interest could be allowed. The affecting their own interest, must be held ad fact that in the findings the damages are missible. The weight to be given it is a called an “indebtedness" does not affect the question apart from its admissibility. character of the action.

The answer of the witness E. Germain,

,

which was stricken out on motion of plain- gage made by Henry Gries. The other de tiff, may have tended in some slight degree fendants were subsequent grantees of the to show the length of time required to cure mortgaged premises. After the commence raisins, though it could scarcely be said to ment of the action, the plaintiff, H. S. Dix. be responsive to the question. But, in any on, became insane, and J. R. Dixon was apevent, the defendant was not prejudiced, as pointed the guardian of his person and eshe was further interrogated, and in reply tate, and upon motion the court made the said he thought it took about two weeks from following order: “It is ordered that J. R. the time they were spread out. This answer Dixon, as guardian of the person and estate would not have been strengthened by that of H. S. Dixon, plaintiff herein, be, and he which was stricken out.

is hereby, substituted as plaintiff herein in No other specifications are discussed by ap- the name, place, and stead of H. S. Dixon." pellant. The judgment should be modified Thereupon a second amended complaint was by striking out the words "sixteen hundred

filed, entitled “J. R. Dixon, as guardian of and ten and 61/100," and inserting "one thou- the person and estate of H. S. Dixon, an insand and ninety-five and 18/100," the modi- sane person, vs. Henry Gries, S. N. Griffith, fied judgment to bear interest from the date and Antonio J. Cardozo.” To this complaint of the original judgment; and, as so modi- a general demurrer was filed by defendants, fied, the judgment and order appealed from and overruled by the court. This complaint should be affirmed, without costs upon ap- contained no averment of the insanity of H. peal to either party.

S. Dixon, nor of the appointment of a guard

ian. At the conclusion of the trial the plainWe concur: SEARLS, C.; BELCHER, C. tiff was permitted to file amendments to said

second amended complaint to conform to PER CURIAM. For the reasons given in the proof, and amendments were thereupon the foregoing opinion, it is ordered that the

filed alleging such insanity, and the apjudgment appealed from be modified by strik

pointment of the plaintiff as guardian, and ing out the words "sixteen hundred and ten

thereupon findings were made for plaintiff, and 81/100," and inserting the words “one

and a decree entered foreclosing the mortthousand and ninety-five and 18/100," the gage. Defendants appeal from the judg. modified judginent to bear interest from the

ment upon the judgment roll. date of the original judgment; and, as so The demurrer should have been sustained modified, the judgment and order appealed to the second amended complaint. Nor were from are affirmed, without costs upon appeal all its defects cured by the amendments to to either party.

make it conform to the proof. The first

error was in the order substituting the (106 Cal. 506)

guardian as plaintiff. His appointment as

guardian did not vest the cause of action in DIXON v. GRIES et al. (No. 18,387.)?

him. It is not sufficient that the complaint (Supreme Court of California. March 20, 1895.)

states facts showing a cause of action in ACTION BY INSANE PERSON-SUBSTITUTION OF

somebody; it must show a cause of action GUARDIAN.

in the plaintiff, or a general demurrer will 1. Where a plaintiff becomes insane after the action is begun, an amended complaint,

lie. H. S. Dixon was not deprived of his bringing in his guardian, must allege plaintiff's right or property in the cause of action by insanity, and the appointment of such guardian.

his insanity, nor did it vest in his guardian 2. The mere appointment of a guardian for one who becomes insa ne pending suit does not

upon his appointment. The suit should have divest the insane person of the right to the cause been prosecuted in the name of H. S. Dixon, of action, or entitle the guardian to be substi

an insane person, by J. R. Dixon, his guardtuted as plaintiff.

ian. See Fox v. Minor, 32 Cal. 116; Wilson 3. Where an action was properly brought in the name of one who became insane while it V. Wilson, 36 Cal. 451; Karr v. Parks, 44 was pending, an erroneous order, substituting the Cal. 48; Emeric v. Alvarado, 64 Cal. 593, 2 guardian of his person and estate as plaintiff,

Pac. 418; Justice v. Ott, 87 Cal. 530, 25 is not cause for dismissal.

Pac, 691; O'Shea v. Wilkinson, 95 Cal. 454, Commissioners' decision. Department 2. 30 Pac. 588. Therefore neither the comAppeal from superior court, Fresno county; plaint nor the facts found support the judgJ. R. Webb, Judge.

ment, and it must be reversed. Action bv H. S. Dixon against Henry Gries

Appellants contend, not only that the and others to foreclose a mortgage. Pend- judgment should be reversed, but that the ing suit, plaintiff became insane, and J. R.

action should be dismissed, and cite Fox v. Dixon, guardian, was substituted as plain- Minor and O'Shea v. Wilkinson, supra. In tiff. Judgment for plaintiff, and defendants

Fox v. Minor the suit was begun in the appeal. Reversed.

name of Fox as guardian. In O'Shea V. Horace Hawes, for appellants. Stuart & Wilkinson the suit was begun against the Wright, J. P. Meux, and S. N. Griffith, for incompetent as defendant. She appeared 'espondent.

and answered by her guardian. After

wards the plaintiff fried an amended comHAYNES, C. This action was originally plaint, and three days later dismissed the brought by H. S. Dixon to foreclose a mort- action against the incompetent, and the

· Rehearing denied.

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