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the facts that plaintiff and said E. R. Den mand," it is no objection to a petition for a both supposed that the written lease was writ of mandate to compel the numbering and for a term of one year only,—from May 1,

recording of a demand so reapproved that pe

titioner could have presented her demand to 1892, to May 1, 1893,—they having agreed the treasurer, and have had it paid, without verbally on such a contract, and believing such numbering and recording. that it had been so drawn, and that they

2. Under the city charter of Los Angeles did not discover anything to the contrary

(St. 1889, art. 21, $ 215), providing that "no

demand can be approved by any board or officer until after the trial of this action, and that

unless it specify each several item plaintiff's counsel had not read the entire

with the date and amount thereof," a demand lease, and so did not discover that it em

for $200, approved by the library board “on

account” of expenses of a delegate to a conbraced a term in excess of one year, until vention, is sufficient, since it consists of but near the conclusion of the oral argument;

one item. that, if he had known of that circumstance,

3. Under the city charter of Los Angeles

(St. 1889, p. 481, art. 8, § 86), authorizing the he would have pleaded the mistake in his library board "to control and order the escomplaint (we suppose with a view to refor- penditure of all moneys at any time in the libramation of the instrument); and that he was

ry fund," and "generally to do all that may be misled by the action of the court in ad

necessary to carry out the spirit and intent of

this charter in establishing a public library and mitting the document in evidence over the reading room," the board may appropriate monobjections of defendants, and afterwards ey to pay the expense of a delegate to a conholding it to be invalid. Assuming, without

gress of librarians. deciding, that we are authorized to consider Commissioners' decision. Department 1. the affidavits by which the alleged surprise 'Appeal from superior court, Los Angeles is made to appear, it is yet clear that the county; Lucien Shaw, Judge. failure of the plaintiff and his counsel to Petition by Tessa L. Kelso for a writ of acquaint themselves before the end of the mandate to Fred H. Teale, city auditor of trial with that important clause of the com- Los Angeles. From a decree granting the paratively brief instrument which is the writ, defendant appeals. Affirmed. foundation of the plaintiff's action, it being

C. H. McFarland and Albert Crutcher, for in their possession and produced in evidence by them, was not "surprise which ordinary

appellant. Sheldon Borden and F. H. How

ard, for respondent. prudence could not have guarded against." Code Civ. Proc. $ 657. Nor is it shown why application for leave to amend, if that was

BELCHER, C. This is an appeal from a desired, was not made when the defect in judgment of the superior court of Los Angethe document was first discovered, and be les county, directing the issuance of a perfore the submission of the case. Certainly, emptory writ of mandate commanding the the discretion allowed to the trial court in appellant, as city auditor of the city of Los passing upon applications for new trial on

Angeles, to number and record a demand such ground has not been abused in this case.

which had been duly approved and allowed There is no merit in the appeal. The ap

by the board of directors of the Los Angeles peal from the judgment should be dismissed,

Public Library. The charter of the city of and the order denying the motion for a new

Los Angeles makes provisions for a public trial should be affirmed.

library, which is to be managed by five di

rectors, known as the “Board of Directors of We concur: VANCLIEF, C.; HAYNES, C.

the Los Angeles Public Library." St. 1839,

p. 456, art. 8. By section 86 the board is PER CURIAM. For the reasons given in

given power, among other things, to appoint the foregoing opinion, the appeal from the

a librarian and necessary assistants, and judgment is dismissed, and the order denying

such other employés as may be necessary: plaintiff's motion for a new trial is affirmed.

to control and order the expenditure of all moneys at any time in the library fund, and order the drawing and payment of all mon

eys out of said fund for such expenditures (106 Cal. 477)

and liabilities as are authorized, subject to KELSO V. TEALE, City Auditor. (No. 19,

the general provisions for the payment of de 421.)

mands on the city treasurer contained in (Supreme Court of California. March 20, article 21; and generally to do all that may 1895.)

be necessary to carry out the spirit and inCLAIM AGAINST CITY -- NUMBERING AND RECORD

tent of the charter in establishing a public ING-MANDAMI'S AGAINST City-LIERARY FUND library and reading room. Article 21 con-PROPRIETY OF APPROPRIATION,

tains the following provisions: 1. Under the charter of the city of Los Section 213: "All demands payable out of Angeles (St. 1889, p. 508, art. 21, SS 213, 214), providing that all demands payable out of the

the library fund must, before they can be library fund must be approved by the library

approved by the city auditor or paid, be preboard, and then delivered to the city auditor, viously approved by the board of directors and, if disapproved by him, again presented to the board, and that on reapproval by the board

of the Los Angeles Public Library by a vote they “shall be delivered to the city auditor, who

of three members thereof, taken with the shall number and make a record of such de- ayes and noes and spread on the minutes,

the action of on said

with , thereupon respond

den ana, aria signed by the presiding Officerent, as the

person beneficially interesten, ne

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and the clerk thereof. After the approval manded of appellant that he should number of said demands they shall be delivered to and record the said demand, but he refused, the city auditor, who shall have the same and still refuses, to do so. Shortly therepower and perform the same duties in refer- after the respondent commenced this proence to demands payable out of the library ceeding by filing her affidavit setting out the fund as is provided for other demands; pro- facts, and an alternative writ of mandate vided, that in case the city auditor shall re- was granted by the court. The appellant ject any such demand, or if, in his opinion, filed a general demurrer to the affidavit, said demand should be paid only in part, he which was overruled, and then answered. shall return the same to the said board of The case came on regularly for trial, and, directors."

after argument of counsel, was submitted to Section 214: “Any demand returned to the court for its decision upon the "plead

the board of directors of the Los ings and admission of the facts made at the Angeles Public Library, with the objection hearing." It does not appear from the recof the city auditor, shall again be consid- ord what the facts admitted were, but in ered by such board, and if such demand be view of them the court held that the plainagain approved as required in the first in- tiff was entitled to the relief demanded, and stance, such objection of the city auditor thereupon ordered and adjudged that a pershall be thereby overruled,

and emptory writ of mandate issue as prayed any demand, the objection to which of the for. city auditor has been overruled by

1. Appellant contends that respondent has the board of directors of the Los Angeles no special or beneficial interest in having Public Library

shall be delivered her demand numbered and recorded, because to the city auditor, who shall number and "such acts upon his part are not prerequisite make a record of such demand, as in the to the presentation of such demand to the case of demands approved by him."

treasurer, and its payment by that officer”; Section 215: "No demand can be approved and in support of this position he cites secby any board or officer, audited or paid, un- tions 216 and 219 of the charter. The first less it specify each several item, with the section cited provides: “The term 'audited,' date and amount thereof."

as used in this charter, with reference to Section 218: “The city auditor must num- demands upon the treasury, is to be underber and keep a record of all demands on the stood to mean that said demands have been treasury approved by him or his objections presented to, passed upon and approved by to which have been overruled, showing,” etc. every officer and board of officers, as re

The demand in question was for $200, quired by this charter, or the objections of which sum, by a resolution passed June 6, the mayor, or city auditor, or both, as the 1893, was appropriated by the board of li- case may be, have been overruled, as herein brary directors on account of the expenses of provided, and this must appear on the face a delegate representing the library at the of the paper representing the demand, or World's Congress of Librarians and to the else it is not audited." And the last section American Library Association Conference, to cited provides: “Every lawful demand upbe held from the 10th to the 24th of July, on the treasury, duly audited as in this char1893. The said demand was presented to ter required, shall in all cases be paid on the board of directors on September 5, 1893, presentation and canceled.” Conceding, withand on the 29th of the same month was duly out deciding, that this point is well taken, approved by the board, and indorsed and au- and that respondent could have presented thenticated in the manner and form required her demand to the treasurer, and had it paid, by the charter. Thereafter the said demand, notwithstanding it had not been numbered with the action of the board indorsed there- and recorded by appellant, still the charter on, and signed by its president and clerk, expressly required appellant, after his obwas delivered to the appellant, as city audjections were overruled, to “number and itor, for his approval, but he refused to ap- make a record of such demand, as in the prove the same, and on October 5, 1993, re- case of demands approved by him." This turned the demand to the board of directors, was a ministerial act, and it was the duty of specifying in writing his objections thereto. appellant to obey the law, and in all respects The demand was thereupon again consid- comply with its requirements. And, having ered by the board, and again approved as failed and refused to do so, he is in no way required in the first instance, and the objec- "aggrieved” by the judgment of the court tions of appellant were thereby overruled. below commanding him to perform that Thereafter the demand was delivered to ap- duty. The judgment cannot, therefore, be pellant, with the last-mentioned action of reversed on this ground. Falk v. Strother, the board duly indorsed thereon, and au- 84 Cal. 544, 22 Pac. 616, and 24 Pac. 110. thenticated by the signatures of its president 2. Appellant also contends that the demand and clerk, with a request that he should was not itemized, as required by section 215 nunber and record the same as required by of the charter, and hence that the directors the charter. Appellant refused to comply of the library had no authority to approve or reapprove the same, and their action in

(106 Cal. 602) attempting to do so was in excess of their

COTTER v. LINDGREN. (No. 19,502.) powers and jurisdiction, and therefore void.

(Supreme Court of California. March 30, And in this connection it is urged that it

1895.) does not appear that respondent was a dele

ACTION FOR PERSONAL INJURIES-UNGCARDED Exgate to the World's Congress of Librarians,

CAVATION IN SIDEWALK--NEGLIGENCE OF EMor that she attended such congress, or that PLOYES--LIABILITY OF SUBCONTRACTOR. she expended the sum of $200, or any part 1. A complaint reciting that defendant thereof, as such delegate. A sufficient an- wrongfully dug a pit on a certain highway on swer to this point is that the demand was

February 9th, and left the same unguarded

during the nighttime; that on February 10th for a specific sum, appropriated on account plaintiff fell into the pit, without any negliof the expenses of a delegate to the congress, gence on his part,-is demurrable as not show. and constituted only a single item; and that

ing that the pit was unguarded when plaintiff

fell in. respondent was such delegate, and attended

2. Defendant, having a subcontract for the the congress, and expended the money in brickwork of a building, on account of lack paying her expenses must be conclusively of work for his la borers, put some of them to

work on an excavation not included in his conpresumed from the action of the board and

tract, under an agreement with the contractor “the admission of the facts made at the hear- that defendant should pay their wages, which ing. The cases cited by appellant to the should be repaid him by the contractor. The effect that it is the privilege and duty of a

laborers worked under the direction of the con

tractor. When the excavation was completed, county auditor to refuse to draw his war

defendant paid the laborers, and was repaid by rants on the treasurer for claims which, al- the contractor. Held, that the laborers, while though sanctioned and ordered paid by the working on the excavation, were not defendboard of supervisors, are void upon their

ant's servants, so as to render him liable for

their negligence. face for want of jurisdiction in the board to 3. A contractor who has completed an exallow them, are not in point. It does not cavation in a sidewalk, as required by his conappear here that respondent's demand is void

tract, is not liable for injuries to persons falling

therein, due to the absence of proper guards, upon its face, nor is appellant called upon to

if he did not contract to guard the excavation draw any warrant for it.

after it was completed. 3. Appellant further contends that, under

Commissioners' decision. Department 1. the provisions of the charter, the directors of

Appeal from superior court, Kern county; the library had no right to make such an

A. R. Conklin, Judge. appropriation from the library funds as that

Action by William Cotter against Charles here in question. And it is said: “The

Lindgren. There was a judgment for plainbenefits to be derived by the taxpayers and

tiff, and defendant appeals. Reversed. patrons of the library from what might be learned by a delegate to a congress of li

Mahon & Laird, for appellant. R. J. Ashe, brarians are too remote, too speculative, too

for respondent. chimerical to make the expenses of such a delegate a legal charge upon the public VANCLIEF, C. Action for damages alfunds." But the question of benefits to the leged to have been suffered by the plaintiff library and its patrons from an expenditure in consequence of negligence of the defendlike that bere involved was one to be deter- ant in leaving unguarded an excavation mined by the directors in the first instance; which he had made in the sidewalk of a and, if there could be any state of circum- street in the town of Bakersfield, into which stances under which such an expenditure plaintiff fell and was injured. The plainwould be authorized, it must be presumed tiff had judgment for $1,600, from which, that such a state was shown, and was con- and an order denying a new trial, the desidered and acted upon by the directors, fendant has appealed. when they made the appropriation. The 1. The appellant contends that the court board was authorized "to control and order erred in overruling his general and special the expenditure of all moneys at any time demurrer to the complaint. The following in the library fund," and "generally to do is a copy of the complaint: "That on or all that may be necessary to carry out the about the 9th of February, 1893, defendant, spirit and intent of this charter in establish- by his servant, wrongfully dug a pit in the ing a public library and reading room." In sidewalk of a certain highway, known as view of the action of the board and of the 'Nineteenth Street,' in the town of Bakerscourt below, we cannot say that the appro- field, Kern county, state of California, and priation, under the circumstances shown, negligently left the same open and exposed was not justifiable and proper. No other during the nighttime, without any protecpoints are made, and, in our opinion, the tion, barriers, or lights to warn citizens or judgment should be atfirmed.

travelers of danger. That on or about the

10th of February, 1893, the plaintiff was We concur: BRITT, C.; SEARLS, C. la wfully traveling on said street, wholly un

aware of any danger; was precipitated into PER CURIAM. For the reasons given in said excavation without any fault or negli. the foregoing opinion, the judgment is af- gence on his part, whereby his left hip firmed.

was dislocated, and he was made sick &

sore & lame, & was confined to his bed, &

1

field. The contract required Bodley to furhad to use crutches for a long time, & was nish all the materials and to do all the work, coupelled to abstain from work for sixty including all necessary excavations for the days, to his damage one hundred & twenty foundation, with areas under the sidewalk dollars ($120), and he has been compelled to give light and ventilation to the cellar. to incur an expense of three hundred dollars Bodley entered into a subcontract with the in medical services, nursing, & medicines. defendant by which the latter was to do all That ever since said accident he has suffer- the brickwork, ironwork, glasswork on sideed great bodily pain and anguish of mind, walk, and the plastering. The brickwork & that he is stiff & lame, & bis health, included walls inclosing the areas under the strengus & activity has been & will be per- sidewalk. When all other brickwork was manenuy injured and impaired, to his dam- so nearly completed as not to afford work age in the sum of ten thousand dollars. for all his employés, the defendant announWherefore, plaintiff prays judgment against ced to Bodley that he was ready to comdefendant in the sum of ten thousand four mence work on the area walls, for which hundred & twenty dollars, with costs of no excavations had then been made, and prosuit.” The following are the grounds of de- posed that Bodley allow defendant's idle murrer: (1) That said complaint does not men to excavate the areas, for which destate facts sufficient to constitute a cause of fendant would pay their wages, to be reaction. (2) The complaint is uncertain in paid to him by Bodley. To this proposal, this: The complaint states that the said pit Bodley assented; and thereupon defendant was dug on or about the 9th day of Febru- told his men to go to work on the areas, ary, 1893, and that the same was left with- and that Bouley's foreman would show out protection, barriers, or lights to warn them where to dig. When they commenced, citizens of danger. The accident complain- | Mr. Bodley himself showed them where to ed of is alleged to have occurred on or about dig, and they dug the holes under his dithe 10th day of February, 1893, a time sub- rections. Among other things, Bodley strictsequent to the 9th, but it is not stated that ly directed them on the first day, and also at the time of the alleged accident the said on the second day they worked, to put up pit was not properly protected and guarded guards around the excavations to keep peoby barriers and lights sufficient to apprise ple from falling in, and they promised to do persons traveling on said highway or side

so.

When the work was completed the dewalk of danger." I think the demurrer fendant paid the men their regular wages; should have been sustained on the second and, as soon thereafter as Mr. Bodley "came ground, at least. It was essential to plain- | around," he repaid the defendant what he tiff's cause of action that the pit was not had paid the men for excavating the areas. sufficiently guarded and lighted at the time | Although there was a sharp conflict of eviplaintiff fell into it; but this fact is not ex- dence as to whether the excavation was pressly alleged, nor does it necessarily fol- properly guarded at the time of the accident, low from the allegation that defendant neg- a finding that it was not so guarded would ligently left the pit "open and exposed dur- be held here to have been justified. Does ing the nighttime," etc., since it is not alleg. the evidence substantially tend to prove that ed that plaintiff fell into it during any night- the negligence by which the excavation was time, much less during any particular night, left unguarded was that of the defendant? and therefore cannot be inferred that the is the only material question to be considpit was not properly guarded when he fell ered. No evidence tends to prove that the into it. In this respect the complaint is defendant contracted to excavate the areas, wholly uncertain.

nor that he controlled, or had the right to 2. The findings of fact are also defective control, the workmen while doing the work; in that, although it is found that the plain- and it does not matter that the servants tiff fell into the pit "on or about the night who und the work were in his general emof February 10th," it is not found, and can- ploy for other purposes. Speaking of the not be inferred from the findings, that the principle of respondeat superior, Mr. Wharpit was not sufficiently guarded and lighted ton, in his work on Negligence (section 173), at the time he fell into it. And upon this says: “Nor does it matter that the servant is issue the evidence was substantially conflict- in the general employ of third persons. ing.

Hence, it is a logical inference that the prin3. Appellant further contends that the ciple does not cease to operate when the servevidence does not justify the finding that ant is in the employ of a third person, if defendant, by his servants, negligently or released for the particular work in quesotherwise dug the pit into which plaintiff tion"; citing Kimball v. Cushman, 103 Mass. fell; and this raises the most important 194, which is similar to this case, but exquestion in the case, which, in view of a tends the doctrine further than necessary new trial, should be decided. The evidence, to discharge the defendant here. It is well without conflict, proved the following facts settled that, in order to hold the master rerelative to this issue; Mr. A. Bodley con- sponsible for the negligence of a servant, he tracted to baild a house for Mr. Harrison must have the power of supervision of the Nineteenth street, in the town of Bakers- servant's conduct. Indeed, the words “mas

fer and servant" imply such power. In this whereby they agreed to sell him two blocks case the relation of master and servant did or tracts of land, viz. blocks 5 and 6 of not exist between the defendant and the Shinn's Valley Home addition to Kent, King men who excavated the areas in the side- county. The contract is short, and we will walk, in regard to that work. At least, the set forth the substance of it here: “It is evidence has no tendency to prove such re- hereby mutually agreed by and between W. lation, but the contrary.

P. Stephenson and Fannie Stephenson, the It is also to be observed that even if the parties of the first part, and David Webb, defendant, by his servants, had excavated the party of the second part, that said parthe areas under contract, it would not have ties of the first part will sell to said party been his duty to guard them after the of the second part, his heirs or assigns, and job was completed, unless he had agreed to said party of the second part will purchase do so.

Donovan v. Rapid Transit Co. (Cal.) of said parties of the first part, their heirs, 36 Pac. 517. And there is no evidence tend- executors, or administrators, the following deing to prove that the job had not been com- scribed lots (giving description), on the folpleted before the accident, while circum- lowing terms: (1) The purchase price for stantial evidence tends to prove that it had said land is $3,000, of which the sum of $1,been so completed. I think the judgment 000 has this day been paid as earnest, and order should be reversed, and the cause

* * * and the further sum of $2,000 in remanded for a new trial.

three equal payments, each of which pay

ments is to be made on or before the 4th We concur: SEARLS, C.; HAYNES, C. day of January of each year for three years

from the date hereof; said sum of $2,000 to PER CURIAM. For the reasons given in

bear interest at the rate of ten per cent. per the foregoing opinion, the judgment and or- annum, payable semiannually. (2) Said land der are reversed, and the cause remanded to be conveyed * * to said party of the for a new trial.

second part when said purchase price shall have been fully paid. (3) Time is the es

sence of this contract. (4) If said party of (11 Wash. 342)

the second part fails to pay the whole of WEBB v. STEPHENSON et al.

said purchase price and interest within the (Supreme Court of Washington. March 7, time specified, then the said parties of the 1895.)

first part may, if they so elect, rescind this Vendor AND PURCHASER RESCISSION OF Cox- contract, and in that case all payments made TRACT-TITLE TO LAND-FALSE REPRESENTA

by the said party shall be forfeited. (5) TIONS- WAIVER-DEED BY VENDOR.

Said party of the second part is to pay all 1. A contract for the sale of land will not be rescinded because the vendor did not own

taxes and assessments which may be herethe land when the contract was made, unless after levied upon said land,”—properly signthe vendee was induced to enter into the con- ed and acknowledged. The allegations of tract by representations of the vendor that he did own it.

the complaint, after setting forth the con2. A purchaser waives the right to rescind

tract, are that at the time said contract was the contract of sale, on account of the vendor's entered into, and for some time prior theremisstatements that he owned the land at the time of making the sale, by making a payment

to, defendant William P. Stephenson was the on the contract after learning of such misstate

owner in fee simple of said above-described ments,

tracts of land, and that his title thereto was 3. A contract for the sale of land will not free from all liens or incumbrances of what. be rescinded merely because, before the time for its performance, the vendor conveys the land

ever nature, and that the plaintiff, relying to a third person.

upon said representations, was induced to

enter into said contract; further set forth Appeal from superior court, King county;

the fact that, at the time the contract was J. W. Langley, Judge.

entered into, the said William P. Stephenson Action by David Webb against William P.

held the title to but one of said tracts, viz. Stephenson and another to rescind a con

tract 5, and that said tract 5 was at that tract for the sale of land, and to recover

time incumbered by mortgages, which mortmoney paid thereunder. A demurrer to the

gages have long since fallen due, and are complaint was sustained, and plaintiff ap

still unsatisfied and liable to foreclosure; peals. Affirmed.

and, further, that on the 20th day of FebMelvin G. Winstock and Frank B. Inger

ruary, 1894, the defendants still further viosoll, for appellant. Jacobs & Jacobs, for re- lated their obligations under said contract, spondents.

and rendered impossible the fulfillment of

their agreement to convey said tract 5 to DUNBAR, J. The appellant (plaintiff be- plaintiff, by making a deed to said tract to low) brought this action for the rescission of one Hattie A. Range, who, the plaintiff ala contract for the sale of real estate, and for leges, is seeking to eject plaintiff from said the recovery of the money paid on said con- premises; that, at the time said contract tract, including taxes paid thereon. On the was entered into, the title to said tract 6 4th day of January, 1892, the respondents was, and still is, in one William J. Shinn. entered into a contract with the appellant, On account of these alleged fraudulent rep

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