the facts that plaintiff and said E. R. Den both supposed that the written lease was for a term of one year only,-from May 1, 1892, to May 1, 1893,-they having agreed verbally on such a contract, and believing that it had been so drawn, and that they did not discover anything to the contrary until after the trial of this action, and that plaintiff's counsel had not read the entire lease, and so did not discover that it embraced a term in excess of one year, until near the conclusion of the oral argument; that, if he had known of that circumstance, he would have pleaded the mistake in his complaint (we suppose with a view to reformation of the instrument); and that he was misled by the action of the court in admitting the document in evidence over the objections of defendants, and afterwards holding it to be invalid. Assuming, without deciding, that we are authorized to consider the affidavits by which the alleged surprise is made to appear, it is yet clear that the failure of the plaintiff and his counsel to acquaint themselves before the end of the trial with that important clause of the comparatively brief instrument which is the foundation of the plaintiff's action, it being in their possession and produced in evidence by them, was not "surprise which ordinary prudence could not have guarded against." Code Civ. Proc. § 657. Nor is it shown why application for leave to amend, if that was desired, was not made when the defect in the document was first discovered, and be fore the submission of the case. Certainly, the discretion allowed to the trial court in passing upon applications for new trial on such ground has not been abused in this case.

There is no merit in the appeal. The appeal from the judgment should be dismissed, and the order denying the motion for a new trial should be affirmed.

We concur: VANCLIEF, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the appeal from the judgment is dismissed, and the order denying plaintiff's motion for a new trial is affirmed.

(106 Cal. 477)

KELSO v. TEALE, City Auditor. (No. 19,421.)

(Supreme Court of California. March 20, 1895.)

CLAIM AGAINST CITY NUMBERING AND RECORDING-MANDAMUS AGAINST CITY-LIBRARY FUND -PROPRIETY OF APPROPRIATION.

1. Under the charter of the city of Los Angeles (St. 1889, p. 508, art. 21, §§ 213, 214). providing that all demands payable out of the library fund must be approved by the library board, and then delivered to the city auditor, and, if disapproved by him, again presented to the board, and that on reapproval by the board they "shall be delivered to the city auditor, who shall number and make a record of such de

mand," it is no objection to a petition for a writ of mandate to compel the numbering and recording of a demand so reapproved that petitioner could have presented her demand to the treasurer, and have had it paid, without such numbering and recording.

2. Under the city charter of Los Angeles (St. 1889, art. 21, § 215), providing that "no demand can be approved by any board or officer ** unless it specify each several item with the date and amount thereof," a demand for $200, approved by the library board “on account" of expenses of a delegate to a convention, is sufficient, since it consists of but one item.

3. Under the city charter of Los Angeles (St. 1889, p. 484, art. 8, § 86), authorizing the library board "to control and order the expenditure of all moneys at any time in the library fund," and "generally to do all that may be necessary to carry out the spirit and intent of this charter in establishing a public library and reading room," the board may appropriate money to pay the expense of a delegate to a congress of librarians.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; Lucien Shaw, Judge.

Petition by Tessa L. Kelso for a writ of mandate to Fred H. Teale, city auditor of Los Angeles. From a decree granting the writ, defendant appeals. Affirmed.

C. H. McFarland and Albert Crutcher, for appellant. Sheldon Borden and F. H. Howard, for respondent.

BELCHER, C. This is an appeal from a judgment of the superior court of Los Angeles county, directing the issuance of a peremptory writ of mandate commanding the appellant, as city auditor of the city of Los Angeles, to number and record a demand which had been duly approved and allowed by the board of directors of the Los Angeles Public Library. The charter of the city of Los Angeles makes provisions for a public library, which is to be managed by five directors, known as the "Board of Directors of the Los Angeles Public Library." St. 1889, p. 456, art. 8. By section 86 the board is given power, among other things, to appoint a librarian and necessary assistants, and such other employés as may be necessary; to control and order the expenditure of all moneys at any time in the library fund, and order the drawing and payment of all moneys out of said fund for such expenditures and liabilities as are authorized, subject to the general provisions for the payment of demands on the city treasurer contained in article 21; and generally to do all that may be necessary to carry out the spirit and intent of the charter in establishing a public library and reading room. Article 21 contains the following provisions:

Section 213: "All demands payable out of the library fund must, before they can be approved by the city auditor or paid, be previously approved by the board of directors of the Los Angeles Public Library by a vote of three members thereof, taken with the ayes and noes and spread on the minutes,

and the action of said board indorsed on said demand, and signed by the presiding officer and the clerk thereof. After the approval of said demands they shall be delivered to the city auditor, who shall have the same power and perform the same duties in reference to demands payable out of the library fund as is provided for other demands; provided, that in case the city auditor shall reject any such demand, or if, in his opinion, said demand should be paid only in part, he shall return the same to the said board of directors."

*

Section 214: "Any demand returned to the board of directors of the Los Angeles Public Library, with the objection of the city auditor, shall again be considered by such board, and if such demand be again approved as required in the first instance, such objection of the city auditor shall be thereby overruled, * ** * and any demand, the objection to which of the city auditor has been overruled by the board of directors of the Los Angeles Public Library shall be delivered to the city auditor, who shall number and make a record of such demand, as in the case of demands approved by him."

Section 215: "No demand can be approved by any board or officer, audited or paid, unless it specify each several item, with the date and amount thereof."

Section 218: "The city auditor must number and keep a record of all demands on the treasury approved by him or his objections to which have been overruled, showing," etc. The demand in question was for $200, which sum, by a resolution passed June 6, 1893, was appropriated by the board of library directors on account of the expenses of a delegate representing the library at the World's Congress of Librarians and to the American Library Association Conference, to be held from the 10th to the 24th of July, 1893. The said demand was presented to the board of directors on September 5, 1893, and on the 29th of the same month was duly approved by the board, and indorsed and authenticated in the manner and form required by the charter. Thereafter the said demand, with the action of the board indorsed thereon, and signed by its president and clerk, was delivered to the appellant, as city auditor, for his approval, but he refused to approve the same, and on October 5, 1893, returned the demand to the board of directors, specifying in writing his objections thereto. The demand was thereupon again considered by the board, and again approved as required in the first instance, and the objections of appellant were thereby overruled. Thereafter the demand was delivered to appellant, with the last-mentioned action of the board duly indorsed thereon, and authenticated by the signatures of its president and clerk, with a request that he should number and record the same as required by the charter. Appellant refused to comply

with this request, and thereupon the respondent, as the person beneficially interested, demanded of appellant that he should number and record the said demand, but he refused, and still refuses, to do so. Shortly thereafter the respondent commenced this proceeding by filing her affidavit setting out the facts, and an alternative writ of mandate was granted by the court. The appellant filed a general demurrer to the affidavit, which was overruled, and then answered. The case came on regularly for trial, and, after argument of counsel, was submitted to the court for its decision upon the "pleadings and admission of the facts made at the hearing." It does not appear from the record what the facts admitted were, but in view of them the court held that the plaintiff was entitled to the relief demanded, and thereupon ordered and adjudged that a peremptory writ of mandate issue as prayed for.

1. Appellant contends that respondent has no special or beneficial interest in having her demand numbered and recorded, because "such acts upon his part are not prerequisite to the presentation of such demand to the treasurer, and its payment by that officer"; and in support of this position he cites sections 216 and 219 of the charter. The first section cited provides: "The term 'audited,' as used in this charter, with reference to demands upon the treasury, is to be understood to mean that said demands have been presented to, passed upon and approved by every officer and board of officers, as required by this charter, or the objections of the mayor, or city auditor, or both, as the case may be, have been overruled, as herein provided, and this must appear on the face of the paper representing the demand, or else it is not audited." And the last section cited provides: "Every lawful demand upon the treasury, duly audited as in this charter required, shall in all cases be paid on presentation and canceled." Conceding, without deciding, that this point is well taken, and that respondent could have presented her demand to the treasurer, and had it paid, notwithstanding it had not been numbered and recorded by appellant, still the charter expressly required appellant, after his objections were overruled, to "number and make a record of such demand, as in the case of demands approved by him." This was a ministerial act, and it was the duty of appellant to obey the law, and in all respects comply with its requirements. And, having failed and refused to do so, he is in no way "aggrieved" by the judgment of the court below commanding him to perform that duty. The judgment cannot, therefore, be reversed on this ground. Falk v. Strother, 84 Cal. 544, 22 Pac. 676, and 24 Pac. 110. 2. Appellant also contends that the demand was not itemized, as required by section 215 of the charter, and hence that the directors of the library had no authority to approve

or reapprove the same, and their action in attempting to do so was in excess of their powers and jurisdiction, and therefore void. And in this connection it is urged that it does not appear that respondent was a delegate to the World's Congress of Librarians, or that she attended such congress, or that she expended the sum of $200, or any part thereof, as such delegate. A sufficient answer to this point is that the demand was for a specific sum, appropriated on account of the expenses of a delegate to the congress, and constituted only a single item; and that respondent was such delegate, and attended the congress, and expended the money in paying her expenses must be conclusively presumed from the action of the board and "the admission of the facts made at the hearing. The cases cited by appellant to the effect that it is the privilege and duty of a county auditor to refuse to draw his warrants on the treasurer for claims which, although sanctioned and ordered paid by the board of supervisors, are void upon their face for want of jurisdiction in the board to allow them, are not in point. It does not appear here that respondent's demand is void upon its face, nor is appellant called upon to draw any warrant for it.

3. Appellant further contends that, under the provisions of the charter, the directors of the library had no right to make such an appropriation from the library funds as that here in question. And it is said: "The benefits to be derived by the taxpayers and patrons of the library from what might be learned by a delegate to a congress of librarians are too remote, too speculative, too chimerical to make the expenses of such a delegate a legal charge upon the public funds." But the question of benefits to the library and its patrons from an expenditure like that here involved was one to be determined by the directors in the first instance; and, if there could be any state of circumstances under which such an expenditure would be authorized, it must be presumed that such a state was shown, and was considered and acted upon by the directors, when they made the appropriation. The board was authorized "to control and order the expenditure of all moneys at any time in the library fund," and "generally to do all that may be necessary to carry out the spirit and intent of this charter in establishing a public library and reading room." In view of the action of the board and of the court below, we cannot say that the appropriation, under the circumstances shown, was not justifiable and proper. No other points are made, and, in our opinion, the judgment should be affirmed.

(106 Cal. 602)

COTTER v. LINDGREN. (No. 19,502.) (Supreme Court of California. March 30, 1895.)

ACTION FOR PERSONAL INJURIES-UNGUARDED ExCAVATION IN SIDEWALK-NEGLIGENCE OF EMPLOYES-LIABILITY OF SUBCONTRACTOR.

1. A complaint reciting that defendant wrongfully dug a pit on a certain highway on February 9th, and left the same unguarded during the nighttime; that on February 10th plaintiff fell into the pit, without any negli gence on his part,-is demurrable as not showing that the pit was unguarded when plaintiff fell in,

2. Defendant, having a subcontract for the brickwork of a building, on account of lack of work for his laborers, put some of them to work on an excavation not included in his contract, under an agreement with the contractor that defendant should pay their wages, which should be repaid him by the contractor. The laborers worked under the direction of the contractor. When the excavation was completed. defendant paid the laborers, and was repaid by the contractor. Held, that the laborers, while working on the excavation, were not defendant's servants, so as to render him liable for their negligence.

3. A contractor who has completed an excavation in a sidewalk, as required by his contract, is not liable for injuries to persons falling therein, due to the absence of proper guards, if he did not contract to guard the excavation after it was completed.

Commissioners' decision. Department 1. Appeal from superior court, Kern county; A. R. Conklin, Judge.

Action by William Cotter against Charles Lindgren. There was a judgment for plaintiff, and defendant appeals. Reversed.

Mahon & Laird, for appellant. R. J. Ashe, for respondent.

VANCLIEF, C. Action for damages alleged to have been suffered by the plaintiff in consequence of negligence of the defendant in leaving unguarded an excavation which he had made in the sidewalk of a street in the town of Bakersfield, into which plaintiff fell and was injured. The plaintiff had judgment for $1,600, from which, and an order denying a new trial, the defendant has appealed.

1. The appellant contends that the court erred in overruling his general and special demurrer to the complaint. The following is a copy of the complaint: "That on or about the 9th of February, 1893, defendant, by his servant, wrongfully dug a pit in the sidewalk of a certain highway, known as 'Nineteenth Street,' in the town of Bakersfield, Kern county, state of California, and negligently left the same open and exposed during the nighttime, without any protec tion, barriers, or lights to warn citizens or travelers of danger. That on or about the 10th of February, 1893, the plaintiff was lawfully traveling on said street, wholly unaware of any danger; was precipitated into said excavation without any fault or negli. gence on his part, whereby his left hip was dislocated, and he was made sick &

sore & lame, & was confined to his bed, & had to use crutches for a long time, & was Compelled to abstain from work for sixty days, to his damage one hundred & twenty dollars ($120), and he has been compelled to incur an expense of three hundred dollars in medical services, nursing, & medicines. That ever since said accident he has suffered great bodily pain and anguish of mind, & that he is stiff & lame, & his health, streng & activity has been & will be permanenuy injured and impaired, to his damage in the sum of ten thousand dollars. Wherefore, plaintiff prays judgment against defendant in the sum of ten thousand four hundred & twenty dollars, with costs of suit." The following are the grounds of demurrer: (1) That said complaint does not state facts sufficient to constitute a cause of action. (2) The complaint is uncertain in this: The complaint states that the said pit was dug on or about the 9th day of Febru ary, 1893, and that the same was left without protection, barriers, or lights to warn citizens of danger. The accident complained of is alleged to have occurred on or about the 10th day of February, 1893, a time subsequent to the 9th, but it is not stated that at the time of the alleged accident the said pit was not properly protected and guarded by barriers and lights sufficient to apprise persons traveling on said highway or sidewalk of danger." I think the demurrer should have been sustained on the second ground, at least. It was essential to plaintiff's cause of action that the pit was not sufficiently guarded and lighted at the time plaintiff fell into it; but this fact is not expressly alleged, nor does it necessarily follow from the allegation that defendant negligently left the pit "open and exposed during the nighttime," etc., since it is not alleg. ed that plaintiff fell into it during any nighttime, much less during any particular night, and therefore cannot be inferred that the pit was not properly guarded when he fell into it. In this respect the complaint is wholly uncertain.

2. The findings of fact are also defective in that, although it is found that the plaintiff fell into the pit "on or about the night of February 10th," it is not found, and cannot be inferred from the findings, that the pit was not sufficiently guarded and lighted at the time he fell into it. And upon this issue the evidence was substantially conflicting.

3. Appellant further contends that the evidence does not justify the finding that defendant, by his servants, negligently or otherwise dug the pit into which plaintiff fell; and this raises the most important question in the case, which, in view of a new trial, should be decided. The evidence, without conflict, proved the following facts relative to this issue; Mr. A. Bodley contracted to build a house for Mr. Harris on Nineteenth street, in the town of Bakers

field.

The contract required Bodley to furnish all the materials and to do all the work, including all necessary excavations for the foundation, with areas under the sidewalk to give light and ventilation to the cellar. Bodley entered into a subcontract with the defendant by which the latter was to do all the brickwork, ironwork, glasswork on sidewalk, and the plastering. The brickwork included walls inclosing the areas under the sidewalk.

so.

When all other brickwork was so nearly completed as not to afford work for all his employés, the defendant announced to Bodley that he was ready to commence work on the area walls, for which no excavations had then been made, and proposed that Bodley allow defendant's idle men to excavate the areas, for which defendant would pay their wages, to be repaid to him by Bodley. To this proposal, Bodley assented; and thereupon defendant told his men to go to work on the areas, and that Bouley's foreman would show them where to dig. When they commenced, Mr. Bodley himself showed them where to dig, and they dug the holes under his directions. Among other things, Bodley strictly directed them on the first day, and also on the second day they worked, to put up guards around the excavations to keep people from falling in, and they promised to do When the work was completed the defendant paid the men their regular wages; and, as soon thereafter as Mr. Bodley "came around," he repaid the defendant what he had paid the men for excavating the areas. Although there was a sharp conflict of evidence as to whether the excavation was properly guarded at the time of the accident, a finding that it was not so guarded would be held here to have been justified. Does the evidence substantially tend to prove that the negligence by which the excavation was left unguarded was that of the defendant? is the only material question to be considered. No evidence tends to prove that the defendant contracted to excavate the areas, nor that he controlled, or had the right to control, the workmen while doing the work; and it does not matter that the servants who und the work were in his general employ for other purposes. Speaking of the principle of respondeat superior, Mr. Wharton, in his work on Negligence (section 173), says: "Nor does it matter that the servant is in the general employ of third persons. Hence, it is a logical inference that the principle does not cease to operate when the servant is in the employ of a third person, if released for the particular work in question"; citing Kimball v. Cushman, 103 Mass. 194, which is similar to this case, but extends the doctrine further than necessary to discharge the defendant here. It is well settled that, in order to hold the master responsible for the negligence of a servant, he must have the power of supervision of the servant's conduct. Indeed, the words "mas

In this

fer and servant" imply such power. case the relation of master and servant did not exist between the defendant and the men who excavated the areas in the sidewalk, in regard to that work. At least, the evidence has no tendency to prove such relation, but the contrary.

It is also to be observed that even if the defendant, by his servants, had excavated the areas under contract, it would not have been his duty to guard them after the job was completed, unless he had agreed to do so. Donovan v. Rapid-Transit Co. (Cal.) 36 Pac. 517. And there is no evidence tending to prove that the job had not been completed before the accident, while circumstantial evidence tends to prove that it had been so completed. I think the judgment and order should be reversed, and the cause remanded for a new trial.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded for a new trial.

(11 Wash. 342)

WEBB v. STEPHENSON et al. (Supreme Court of Washington. March 7, 1895.)

VENDOR AND PURCHASER RESCISSION OF CONTRACT-TITLE TO LAND-FALSE REPRESENTA

TIONS-WAIVER-DEED BY VENDOR.

1. A contract for the sale of land will not be rescinded because the vendor did not own the land when the contract was made, unless the vendee was induced to enter into the contract by representations of the vendor that he did own it.

2. A purchaser waives the right to rescind the contract of sale, on account of the vendor's misstatements that he owned the land at the time of making the sale, by making a payment on the contract after learning of such misstate

ments.

3. A contract for the sale of land will not be rescinded merely because, before the time for its performance, the vendor conveys the land to a third person.

Appeal from superior court, King county; J. W. Langley, Judge.

Action by David Webb against William P. Stephenson and another to rescind a contract for the sale of land, and to recover money paid thereunder. A demurrer to the complaint was sustained, and plaintiff appeals. Aflirmed.

Melvin G. Winstock and Frank B. Ingersoll, for appellant. Jacobs & Jacobs, for respondents.

DUNBAR, J. The appellant (plaintiff below) brought this action for the rescission of a contract for the sale of real estate, and for the recovery of the money paid on said contract, including taxes paid thereon. On the 4th day of January, 1892, the respondents entered into a contract with the appellant,

whereby they agreed to sell him two blocks or tracts of land, viz. blocks 5 and 6 of Shinn's Valley Home addition to Kent, King county. The contract is short, and we will set forth the substance of it here: "It is hereby mutually agreed by and between W. P. Stephenson and Fannie Stephenson, the parties of the first part, and David Webb, the party of the second part, that said parties of the first part will sell to said party of the second part, his heirs or assigns, and said party of the second part will purchase of said parties of the first part, their heirs, executors, or administrators, the following described lots (giving description), on the following terms: (1) The purchase price for said land is $3,000, of which the sum of $1,000 has this day been paid as earnest,

* and the further sum of $2,000 in three equal payments, each of which payments is to be made on or before the 4th day of January of each year for three years from the date hereof; said sum of $2,000 to bear interest at the rate of ten per cent. per annum, payable semiannually. (2) Said land to be conveyed * * to said party of the second part when said purchase price shall have been fully paid. (3) Time is the essence of this contract. (4) If said party of

the second part fails to pay the whole of said purchase price and interest within the time specified, then the said parties of the first part may, if they so elect, rescind this contract, and in that case all payments made by the said party shall be forfeited. (5) Said party of the second part is to pay all taxes and assessments which may be hereafter levied upon said land,"-properly signed and acknowledged. The allegations of the complaint, after setting forth the contract, are that at the time said contract was entered into, and for some time prior thereto, defendant William P. Stephenson was the owner in fee simple of said above-described tracts of land, and that his title thereto was free from all liens or incumbrances of whatever nature, and that the plaintiff, relying upon said representations, was induced to enter into said contract; further set forth the fact that, at the time the contract was entered into, the said William P. Stephenson held the title to but one of said tracts, viz. tract 5, and that said tract 5 was at that time incumbered by mortgages, which mortgages have long since fallen due, and are still unsatisfied and liable to foreclosure; and, further, that on the 20th day of February, 1894, the defendants still further violated their obligations under said contract, and rendered impossible the fulfillment of their agreement to convey said tract 5 to plaintiff, by making a deed to said tract to one Hattie A. Range, who, the plaintiff alleges, is seeking to eject plaintiff from said premises; that, at the time said contract was entered into, the title to said tract 6 was, and still is, in one William J. Shinn. On account of these alleged fraudulent rep