(185 P.) send $2,000 in ten days, and that I could make definite promises based upon this. I received this wire while in Los Angeles, and consequently felt perfectly safe in making you the promise which I made you. *The stockholders have until the end of this month in which to pay the assessment. At the end of that time we intend to reorganize and get out among our stockholders and get a subscription for $10,000 worth of stock. Out of this we will pay you in full and pay Fairbanks-Morse a small balance we owe them, which will be our total indebtedness. We will not commence work again on the well until you are fully paid. "With the assurance we have of getting oil there, I cannot see any reason why we shall not be able to raise the sum stated, and I shall insist on raising that amount at least." On March 24, 1913, he wrote: "I wrote Mr. Berry fully some time ago as to our plan. It is to raise $10,000.00 with which to complete our well, out of which we will pay you our indebtedness before work is resumed. "I have nearly $6,000.00 subscribed and am working on several lines which ought to bring in the balance before long. I had expected to have it subscribed before this time, but find it slower work than I anticipated. "I am doing the very best I can and will work it out all right and your bill will be paid, but it takes hard work to enthuse people on the oil situation now." And on November 1, 1913, after setting forth a plan of getting the stockholders in Honolulu to co-operate with certain investors in financing the company, he closed with the following paragraph: "I am doing everything that I possibly can, and, as I have stated before, this bill will be paid before we start work." It is to be remembered that the communications of Mr. Broughton were written upon letterheads upon which, in addition to the corporate name, was printed his own as president; that he frequently used the pronoun "we" in reference to the indebtedness and the promise to pay it; that throughout the letters various references were made which were appropriate to the corporation; and that Mr. Broughton had very plenary powers in reference to binding the corporation in the very matter of this development. Under all the circumstances it would be sacrificing substance to form for us to hold that he could take the indebtedness out of the purview of the statute by subscribing the corporate name and adding "per Howard A. Broughton, President," yet could not do so by the subscription of his own signature alone. We think that under the circumstances the letter head was incorporated by reference in the communications, and that the signature of the president appearing at the foot of each letter constitutes a sufficient promise to take the claim out of the bar of the statute of limitations. All of the quotations from Mr. Broughton's letters, taken in connection with his undoubted authority to bind the defendant corporation, fully justify the findings of the court and the conclusion of law that an acknowledgment of the debt had been made as required by section 360 of the Code of Civil Procedure, and that such new promise to pay took the indebtedness out of the bar of the statute of limitations. The judgment is affirmed. We concur: WILBUR, J.; LENNON, J. (181 Cal. 537) In re PAGE'S ESTATE. (L. A. 6232.) (Supreme Court of California. Nov. 19, 1919.) 1. WILLS 506(2)—LEGACY TO "LAWFUL HEIRS" OF WIDOW TESTATRIX; RIGHTS OF HUSBAND'S HEIRS. Under will of widow with no issue or parents, leaving one-fourth of residue to deceased husband's "lawful heirs" and the other threefourths to her "lawful heirs," the three-fourths should be distributed to persons who would have inherited it in absence of will; the husband's heirs being entitled, as widow's heirs under Civ. Code, § 1386, subd. 8, to all of such portion of residue inherited by widow from husband and to one-half of what had been community property, notwithstanding legacy to them of onefourth of residue, or use of term "lawful heirs" in providing for such legacy; and wife's heirs, under subdivisions 2 and 3 of section 1386, being entitled to her separate property and that acquired after husband's death, and to other half of community property. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Lawful Heirs.] 2. WILLS 524(2)-TIME OF ASCERTAINMENT OF LAWFUL HEIRS. Under widow's will, giving legacy to "lawful heirs" of deceased husband, the term "lawful heirs" is to be construed as of the date of the death of testatrix, and to include only those who were his heirs at that time, excluding those who died before death of testatrix. Department 2. Appeal from Superior Court, Los Angeles County; James C. Rives, Judge. In the matter of the estate of Philura B. Page. From a decree of final distribution of estate on application of Frank Bryson, administrator, Zeno T. Page and others, heirs of deceased, appeal. Reversed. Stewart & Stewart, of Los Angeles, for appellants. George L. Greer, of Los Angeles, for respondents. WILBUR, J. This is an appeal from a decree of final distribution of the estate of Philura B. Page, a widow, who left no issue, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes no father, and no mother. The principal; subdivision 3, were permitted to share in the question is as to the proper construction of "three-fourths" left to "my lawful heirs." the following clause of the will of the deceased: "I give, bequeath and devise to Russel G. Page, my husband, all the rest, residue and remainder of my estate of whatever kind or nature or wherever situated, and in the event that my husband dies before my death, then I give, bequeath and devise one-fourth of the rest, residue and remainder of my estate to his lawful heirs and the balance, after deducting said onefourth, to be equally divided among my lawful heirs." (Italics ours.) The difficulty of interpretation arises rather from the character of the property left by the testatrix and the peculiar provisions of the law governing its succession than from the language used in the will. If the property had been entirely the separate property of the testatrix, or acquired by her subsequent to her husband's death, there would be no difficulty about the provision of the will. The heirs of the husband would take one-fourth, and the heirs of the wife-that is to say, those persons designated in subdivision 3 of section 1386—would take the remaining three and unambiguous, the fact that some of the property to be disposed of thereby was community and some other separate property of her deceased husband, to be distributed under the provisions of section 1386, subdivision 8, is not sufficient to change the interpretation that otherwise should be placed upon the plain and unambiguous terms of the will. In other words, the fact that the undivided one-fourth devised and bequeathed to "his [the husband's] lawful heirs" and the undivided threefourths of the residue bequeathed and devised to "my [the wife's] lawful heirs" may in whole or in part be distributed to the same persons is not decisive of the question as to who the testatrix intended to designate by the words "my lawful heirs," for she made no attempt to limit or define the term "heirs," leaving that to the law. The separate provision for the lawful heirs of the husband does not deprive them of their rights, if any, as heirs of the wife. The decree is erroneous, in so far as it fails to distribute such portions of the estate as come within the provisions of section 1386, subdivision 8, in accordance with the provisions thereof. [1] The husband, Russel G. Page, predeceased the testatrix March 17, 1912. A por-fourths. As the language of the will is plain tion of the property owned by the testatrix at the time of her death was the community property of herself and her deceased spouse, and a portion was the separate property of such deceased spouse, and as to other property of the testatrix, while it is claimed to have been the community property of herself and her deceased spouse, there is no finding on the question, and that it may have been her separate property, although we express no opinion on that matter. In the absence of a will and issue, the right to succeed to the property of a widow, derived from her deceased spouse, is regulated by section 1386, subdivision 8, of the Civil Code, and as to her separate property acquired before or after the death of the spouse by subdivision 2 or 3 of section 1386. It is held in Estate of Watts, 175 Pac. 415, that where there is no issue a devise and bequest by a widow "to my heirs" is to be construed as a devise and bequest to those who would take under section 1386, subdivision 8, of the Civil Code, where such persons would succeed to the property in the absence of a will. It will be observed, then, that different heirs of the deceased inherit the different classes of property. Her separate property owned by her during the marriage or acquired by her subsequent to the marriage would be distributed in accordance with section 1386, subdivision 3. The common property of the testatrix and her deceased husband would be divided between the relatives of herself and the relatives of her deceased husband. The separate property of the deceased husband would go to his relatives alone. In view of the above decision, the only difficulty in interpreting the clause of the will in question arises from the fact that a direct devise and bequest is made to the "lawful heirs" of the predeceased spouse, and there was, therefore, apparently in the mind of the testatrix a distinction, to use her own language, between "his lawful heirs" and "my lawful heirs," It follows that one-fourth of the residue which might lead to the conclusion that when should have been distributed to the heirs of she referred to "my lawful heirs" she meant the deceased spouse, to be determined as of to exclude "his lawful heirs." The distribu- the date of the death of the testatrix; that tion was ordered on this theory, and there- the remaining three-fourths should be disfore only the heirs designated in section 1386, | tributed in accordance with the provisions of [2] Another difficulty arises in the interpre tation of the provisions of the will. The appellants contend that, as to the one-fourth left the heirs of the deceased husband, such heirs must be determined as of the date of his death, and, inasmuch as some of such heirs died before the testatrix, that the decree distributing such one-fourth to the persons who would have been the heirs of the deceased, had he died at the same time as did the wife was erroneous. We think, however, that the decision of the trial court in this respect was correct, that the term "his lawful heirs" is to be construed as of the date of the death of the testatrix, and to include only those who were his heirs at that time, excluding those who died before the death of the testatrix. (185 P.) Department 2. Smith and others. Judgment for plainAction by Leon F. Moss against Clarence tiff, and defendants appeal. Affirmed. section 1386, subdivision 8, of the Civil Code, It is ordered that the portion of the decree relating to the distribution of the residue of the estate and that portion of the decree distributing the legacy of Bradford G. Bass to Edward L. Bass, Ellen F. Brown, and Clemie R. Pratt be reversed, and that the property distributed to the heirs of Bradford G. Bass be distributed as part of the residue; that said residue, consisting of the separate and community property of the deceased spouse, be distributed in accordance with subdivision 8, section 1386, of the Civil Code, and the balance, if any, be distributed in accordance with subdivision 3 of section 1386 of the Civil Code; that the trial court take such evidence as may be necessary to determine the rights to such residue. We concur: LENNON, J.; MELVIN, J. (181 Cal. 519) MOSS v. SMITH et al. (L. A. 5328.) (Supreme Court of California. Nov. 15, 1919. Leo V. Youngworth and Frank P. Doherty, both of Los Angeles, for appellants. Leon F. Moss, of Los Angeles, for respondent. WILBUR, J. This action was brought by the plaintiff to recover damages for a breach of a written warranty given by the defendants at the time of the purchase by plaintiff from them of an automobile. Plaintiff recovered a judgment of $2,000. Defendants appeal. The automobile in question was guaranteed in the following language, to wit: "To be free from defects in material or workmanship for one year from the 13th day of October, 1914, and will replace such defective part or parts in the car absolutely free of charge when delivered at our place of business." It is conceded that the engine and clutch of the automobile in question were defective, but the appellants claim that the defects were those of design instead of material or workmanship. Respondent alleged that the automobile was defective in both material and workmanship, in that the clutch would not operate properly in certain specified particulars, and that the engine on said automobile, consisting of six cylinders and pistons and other parts, was so defective "that it would not properly operate and drive said automobile, in that the pistons did not prop 1. APPEAL AND ERROR 1011(1)-REVIEW OF erly fit the cylinders, the cylinders were not FINDING ON CONFLICTING EVIDENCE. That there was evidence which would justify a conclusion contrary to that reached by the trial court requires the application of the rule that where there is a substantial conflict in the evidence the decision of the trial court on the facts is binding on the court on appeal. 2. SALES 441(4)-EvIDENCE SUFFICIENT TO SUPPORT JUDGMENT FOR BREACH OF WARBANTY. In action by buyer of automobile for breach of warranty that automobile was free from defects in material or workmanship, evidence held to justify judgment for plaintiff for $2,000 under Civ. Code, §§ 3300, 3313. 3. SALES442(4)—DATE FOR MEASURE OF DAMAGES ON BREACH OF WARRANTY. Where buyer and sellers of automobile contemplated that engine should be used continually, and that defects discovered should be remedied from time to time as discovered, the time of the first discovery of the breach may be taken as the proper date for fixing the measure of damages, where it is ultimately ascertained that attempts to remedy the defects are unavailable. properly put together and placed on said engine, and were not properly in line, and in other respects concerning which plaintiff is not informed, but defendants are fully informed. The court found the facts in ac-. cordance with the allegations of the complaint, and also found that but for the defects in said automobile the same would have been worth $3,000, but that in the condition in which the same was sold and delivered to respondent same was at the said time of the value of $750, and no more. [1] The question presented is whether or not the evidence is sufficient to justify the finding of the trial court that the defects were those of workmanship and material, and not of design. The evidence upon the subject covers over 450 pages of the transcript. It would serve no useful purpose to analyze this evidence. Suffice it to say that evidence was introduced showing the representations made by the manufacturers through the appellants to the respondent as to the design of the automobile and its engine. These statements, if believed by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes court, as they no doubt were by the respond- | damages is to be ascertained at the time that ent in purchasing the car, fully justified the the breach of the warranty is discovered, conclusion that the defective operation of the car was due, not to the imperfect design of the engine, but to faulty workmanship in its construction. The fact that there was evidence which would have justified a contrary conclusion merely requires the application of the rule that where there is a substantial conflict in the evidence, the decision of the trial court upon the facts is binding upon this court. there is no reason why, in a case of this sort, where it is contemplated by the parties that the engine guaranteed should be used continually, and that defects discovered from time to time should be remedied as discovered, the time of the first discovery should not be taken as the proper date for fixing the measure of damages, where, as here, it is ultimately ascertained that the attempts to remedy the defects were unavailable. A substantial part of the warranty was that the appellants would "replace such defective part or parts in the car absolutely free of charge." Respondent refrained from bringing suit until it was apparent that it was impossible for the appellants to make good their warranty in that respect, and thereafter sued for damages suffered. The evidence was sufficient to justify the finding of the trial court as to the amount of damages. See sections 3300 and 3313 of the Civil Code. The judgment is affirmed. We concur: LENNON, J.; MELVIN, J. (181 Cal. 508) UTILITIES OF CITY OF LOS (Supreme Court of California. Nov. 14, 1919.) [2, 3] Appellants contend that there is not sufficient evidence as to the damages to justify the judgment, for the reason that the testimony was as to the difference in value of the automobile at the time it was purchased had it been in the condition warranted and its value in the condition in which it actually was, and that the proper amount of damages is the difference between its actual value at the time of the discovery of the defects and its value had it been as represented. It was alleged and the court found that the defects were discovered within a week after the purchase. It is true that from that time forward for nearly a year respondent and appellants had dealings with reference to the machine, respondent from time to time calling attention to the defective condition of the engine of the automobile and the appellants conceding the defects and en- A. R. G. BUS CO. v. BOARD OF PUBLIC deavoring to remedy them by various changes in the engine and repairs to the clutch. In November, 1915, respondent requested certain repairs to the machine, and at that time the appellants requested that he take the machine to Mr. John Stintin for repair. After the report of Mr. Stintin on November 16, 1915, respondent notified the appellants that they must either take the car off his hands and furnish him a new car, or that he would be compelled to sue them for damages. Thereafter repairs were made by said Stintin at an aggregate cost of $353.84, which was paid December 29, 1915. These repairs proving unsuccessful, respondent brought suit January 25, 1916, and in July, 1916, traded in said automobile on a new machine for the allowance of $750. The entire distance traveled by the automobile was about 5,000 miles. In view of these facts we see no reason why the evidence introduced was insufficient to justify the conclusion of the court as to the amount of damages suffered by the plaintiff. If we assume that the rule adopted by this court in the cases involving the sale of nursery stock (Shearer v. Park Nursery Co., 103 Cal. 415, 37 Pac. 412, 42 Am. St. Rep. 125; Burge v. Albany Nurseries, 176 Cal. 313, 168 Pac. 343) controls, in that the measure of CERTIORARI ACTS. 23-REVIEW OF LEGISLATIVE Certiorari will not lie against the board of public utilities of the city of Los Angeles to review an act purely legislative in character. In Bank. Application by A. R. G. Bus Company for certiorari prayed to be directed to the Board of Public Utilities of the City of Los Angeles to review a legislative act. Application denied. Alfred H. McAdoo, of Los Angeles, for petitioner. PER CURIAM. The court is of the opinion that the action of the board of public utilities of the city of Los Angeles, which is sought to be reviewed herein, was purely legislative in character. It follows that certiorari will not lie. Solely on that ground the application is denied. All concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (181 Cal. 530) BLECH v. JEAL et al. JEAL et al. v. BLECH et al. (L. A. 5278.) (185 P.) (Supreme Court of California. Nov. 15, 1919.) TION OF MORTGAGED PREMISES ENTITLED TO Where mortgagors at time of their sale of a portion of lands subject to one mortgage agreed that upon payment by purchaser of $3,000 to apply on the principal of the mortgage they would execute a mortgage on certain lands to secure the repayment to the purchaser of said sum, and thereafter one acquired the previously existing mortgage as trustee for purchaser, and without consideration released therefrom the land conveyed, held, that trustee was entitled to have such mortgage satisfied out of the remaining mortgaged lands; $3,000 of the principal of the mortgage remaining due and unpaid, and the promised mortgage never having been executed. Department 2. Mrs. Rutledge assumed no personal obligation to pay the mortgage indebtedness, which had at the time of the conveyance been reduced to $8,500. Respondent Blech, subsequent to his acquisition of the note and mortgage as trustee for Mrs. Rutledge, without consideration, released from the mortgage the land conveyed to her by appellants. Appellants contend that the above-mentioned release was in effect a fraud upon them. In this behalf it is argued that, when Mrs. Rutledge accepted the conveyance of the land subject to the mortgage, she undertook, as between herself and appellants, to pay part of the mortgage indebtedness. The existence of this obligation, which appellants assert should be implied from the facts surrounding the conveyance, is further supported by the argument that the debt for which the land was liable must presumably have been considered in determining the price which Mrs. Rutledge was required to pay appellants for the land. Assuming, although by no means admitting, that such would be the interpretation to Appeal from Superior Court, Los Angeles be placed upon the transaction in the abCounty; Lewis R. Works, Judge. Action by Charles K. Blech against J. W. Jeal and others, in which J. W. Jeal and Jessie Jeal filed cross-complaints against Charles K. Blech and another. From the judgment rendered, the cross-complainants appeal. Affirmed. Crandall & Edmonds, E. Earl Crandall, and C. L. Welch, all of Los Angeles, for appellants. sence of an express agreement to the contrary, respondents rely upon two agreements executed by appellants and Mrs. Rutledge at the time of the conveyance. Respondents allege that by these agreements Mrs. Rutledge undertook to pay $5,500 of the mortgage indebtedness, and that appellants agreed to pay the remaining $3,000; it being further stipulated that, should appellants fail to pay this portion of the debt as agreed by them, and it should, therefore, become necessary F. D. R. Moote, of Los Angeles, for re for Mrs. Rutledge to advance the entire sum spondents. LENNON, J. This is an appeal from a judgment upon the judgment roll alone. The question presented for our determination is whether or not the findings support the conclusion of law that respondent Blech is entitled to have a mortgage held by him in trust for respondent Rutledge satisfied out of the lands of appellants. in order to secure a release, appellants would execute a mortgage on certain land owned by them to secure the repayment to Mrs. Rutledge of the sum so advanced. Although the court found that appellants had been guilty of a breach of the agreements collateral to the contract for the sale of the land to Mrs. Rutledge, appellants assert that there is no sufficient finding as to the terms of the said agreements to enable From the findings it appears that appel- the judgment to be supported on the theory lants, defendants and cross-complainants be- that the mutual obligations of appellants low, executed a note wherein they promised and Mrs. Rutledge with respect to the mortto pay to one Earle L. Roberts the sum of gage indebtedness were determined by ex$9,500. At the same time appellants execut- press agreement at the time of the sale. ed a mortgage on various parcels of land This contention is not sustained by the recowned by them to secure this note. By as- ord. In the finding numbered XIII the court signment respondent Blech became the own- finds that, at the time of the sale of the er of the note and mortgage which he holds property to Mrs. Rutledge, appellants agreed in trust for respondent Rutledge. Three that, upon the payment by Mrs. Rutledge of thousand dollars of the principal sum re the sum of $3,000 to apply on the principal mains due, owing, and unpaid. A portion of of the mortgage indebtedness, they would exthe land covered by the mortgage was con- ecute a mortgage on certain land to secure veyed by appellants to respondent Rutledge the payment to her of this sum by them, and prior to the time at which she acquired the that at the same time Mrs. Rutledge agreed equitable title to the note and mortgage. to credit on the sum so to be secured to her For other cases see same topic and KFY-NUMBER in all Key-Numbered Digests and Indexes |