NEGLIGENCE (Continued). a man who was known, or who should have been known, to be an habitual drunkard. (Id.) 24. CARE IN MANAGEMENT OF WAREHOUSE - BURDEN OF PROOF.-In such action, while it was incumbent upon the plaintiff to sustain the burden of showing defendant's negligence, it was not necessary to the plaintiff's case to show affirmatively what would constitute ordinary care on the part of the defendant in the operation and management of its warehouse, the same being a matter of defense, and, in the absence of a showing in that behalf, it was within the province of the jury to determine from all the evidence whether the defendant was negligent in the management of its business, or conducted it with the care and caution which would, considering the character of the business, ordinarily be required of a reasonably prudent person. (Id.) 25. OPERATION OF ELEVATOR WITH OPEN DOORS.-The operation of an elevator with the doors opening into it open while passing a floor is negligence. (Parsons v. Easton, 764.) - 26. DEATH IN ELEVATOR ACCIDENT THEORY OF ACCIDENT · - SUFFICIENCY OF EVIDENCE.-In an action by parents for the death of their son from injuries received while a passenger in an elevator, the verdict cannot be overturned on the ground of the insufficiency of the evidence to show that the injury was caused by the defendant's negligence, where the circumstances contradictory of the testimony as to the manner of the accident were sufficient to justify the jury in rejecting the testimony and adopting the theory indicated by the circumstances. (Id.) 27. Loss OF BEANS-DESTRUCTION OF WAREHOUSE - LIABILITY OF WAREHOUSEMAN.-Judgments affirmed upon the authority of See Contribution, 1; Nonsuit, 3; Parent and Child, 1. NEGOTIABLE INSTRUMENTS. See Banks and Banking; Promissory Notes. NEW TRIAL. See Partnership, 4. NONSUIT. 1. EVIDENCE-PRESUMPTIONS.-Upon a motion for nonsuit, the evidence adduced in support of plaintiff's case and every presumption and inference that may be fairly deduced therefrom must be viewed in the light most favorable to the plaintiff's case and against the motion for a nonsuit. (McKay v. McKay, 742.) 2. INTERPRETATION OF EVIDENCE.-Upon a motion for a nonsuit the evidence must be interpreted most strongly against the defendant, and unless the evidence for plaintiff is so weak as not to be NONSUIT (Continued). capable of sustaining a decision in his favor, the judgment must be reversed. (Gates v. Pendleton, 797.) 3. NEGLIGENCE-AUTOMOBILE ACCIDENT STATUS OF DRIVER REASONABLE INFERENCE FROM EVIDENCE-ERRONEOUS NONSUIT.-Where a father sent an invitation to his son by the latter's law clerk to join the father and certain other persons as a guest and take them to the place of entertainment in the son's automobile, and the son declined the invitation but permitted the law clerk to use the machine to drive the parties to the place of destination, and the father was advised of the son's declination and permission, the inference is reasonable that the father was in charge of the expedition and responsible for the negligence of the driver, and the granting of a nonsuit on the theory that the driver was a fellow-guest was erroneous. (Id.) See Estates of Deceased Persons, 6, 8; Leases, 8. NOTICE. See Appeal, 5, 6; Contracts, 16; Corporations, 10, 14, 17, 38; Dismissal, 1; Fire Insurance, 5; Mechanics' Liens, 1; Negligence, 21, 23; Promissory Notes, 1; School Lands, 10; Tax Sales, 2; Vendor and Vendee, 5; Workmen's Compensation Act, 20. NOVATION. See Contracts, 26. OPTION. See Corporations, 38. ORDINANCES. See Municipal Corporations, 22, 27, 28; Water Rates, 1, 6. PARENT AND CHILD. 1. NEGLIGENCE-ACTION BY PARENT FOR DEATH OF CHILD-DAMAGES. In an action by a parent for the death of a child, the damages allowed are only those which have been or may be suffered by the parent without regard to any suffering of the child. (Parsons v. Easton, 764.) 2. ASSESSMENT OF DAMAGES-EXPECTANCY OF LIFE.-In an action by parents for the death of a child, the shorter expectancy of life is to be taken into consideration, and if their expectancy is shorter than that of the child, the benefits to be considered are those only which might accrue during their lives. (Id.) 3. DEPRIVATION OF SOCIETY - DAMAGES WHEN RECOVERABLE.-Damages arising from a deprivation of the society, comfort, and protection of a child by reason of its death through the negligence of another may be allowed to the parent, under section 377 of the Code of Civil Procedure, only where the circumstances show a reasonable probability that the society, comfort, and protection afforded to the surviving parent was of such a character PARENT AND CHILD (Continued). that it would be of pecuniary advantage to the parent, and that a deprivation thereof would entail a pecuniary loss to the latter. (Id.) 4. ACTION BY PARENTS FOR DEATH OF SON-EXCESSIVE VERDICT.-In an action by parents for the death of their son a verdict of six thousand dollars was excessive where the father's age was sixtynine and a half years, the mother's age a little under sixty years, the son's age at the time of his death twenty-seven years, and the son mentally deficient and earning but $360 per year. (Id.) See Divorce, 1-4; Guardian and Ward, 6, 7, 10, 11, 14-16; PARTIES. DISCRIMINATORY ORDINANCE-RIGHT OF COMPLAINT.-A person not within the class whose constitutional rights are invaded by an alleged discrimination cannot complain. (In re Nowak, 701.) See Conspiracy, 3, 5; Corporations, 28; Deeds, 1; Fraternal Societies, 1; Judgments, 1; Negligence, 13, 14; Prohibition, 2; Public Officers, 1; School Lands, 9. PARTNERSHIP. 1. FICTITIOUS NAME-COMPLIANCE WITH CODE REQUIREMENTS-PLEADING TENDER OF ISSUE.-In an action by a partnership doing business under a fictitious name, where the complaint counts on a partnership contract and alleges compliance with the requirements of sections 2466 and 2468 of the Civil Code, an issue is tendered on the fact of publication of the certificate of partnership, and a plea in abatement is not necessary. (Rudneck v. Southern California M. & R. Co., 274.) 2. FINDING WITHOUT EVIDENCE-WHEN JUSTIFIED.-In such an action, a finding on the issue of the publication of the certificate of partnership in plaintiff's favor without evidence can be upheld only in case the burden does not rest upon the plaintiffs to prove the affirmative of the issue. (Id.) 3. COMPLIANCE WITH CODE-BURDEN OF PROOF.-In an action by a partnership doing business under a fictitious name to recover on a partnership contract, the plaintiffs have the burden of proving compliance with sections 2466 and 2468 of the Civil Code. (Id.) 4. NEW TRIAL-ISSUE OF PUBLICATION OF CERTIFICATE.-In an action by a partnership doing business under a fictitious name to recover on a partnership contract, where all the issues except that as to the publication of the certificate of partnership have been properly determined, it is not necessary that there be a new trial except as to such issue. (Id.) CLXXXIV Cal.-56 PARTNERSHIP (Continued). 5. FAILURE TO PUBLISH CERTIFICATE-MATTER OF ABATEMENT.—The fact that publication of the certificate of a partnership doing business under a fictitious name has not been made is but a matter of abatement. (Id.) 6. COMPLIANCE PRIOR TO TRIAL SUFFICIENT.-In an action by a partnership doing business under a fictitious name to recover on a partnership contract, it is sufficient if there be a compliance with the requirements of sections 2466 and 2468 of the Civil Code before trial upon the issue. (Id.) 7. AGREEMENT BETWEEN OWNER AND MANAGER OF APARTMENT HOUSE -ACQUISITION OF INTEREST BY MANAGER-TRANSFER OF BUSINESS BY OWNER TO CORPORATION - RIGHTS OF MANAGER.-Where an agreement between the owner of an apartment house and the manager thereof declared that they were partners and provided that when the indebtedness incurred by the owner in furnishing the apartments had been paid and the money advanced by him in otherwise financing the business had been repaid out of the profits, the owner would convey to the manager a one-third interest in the business, and further provided that the owner could at any time assign all his rights in the business to a corporation which should be bound by all the terms and conditions of the agreement, the assignment by the owner of his interest to a corporation which accepted the transfer subject to all the terms and conditions of the agreement terminated the partnership relationship between the owner and the manager, but did not terminate the rights of the manager under the agreement to pay off the liabilities of the business from the profits and acquire a one-third interest therein freed from such liabilities. (Mervyn Investment Co. v. Biber, 637.) 8. ASSIGNMENT OF INTEREST IN PARTNERSHIP-CONSENT OF REMAINING PARTNER-STATUS OF ASSIGNEE.-An assignee of a partner who accepts an assignment of the partner's interest subject to the terms and conditions of the partnership agreement and with the consent of the other partner, steps into the partnership shoes of his assignor. (Id.) 9. CORPORATION AS PARTNER.-A corporation can enter into a partnership if so authorized by its articles of incorporation and charter. (Id.) 10. RELATIONSHIP OF PARTNER-ULTRA VIRES-BURDEN OF PROOF.A corporation which was organized for the purpose of taking over a partner's interest in a partnership business and which for a time through its board of directors operated the business conjointly with the remaining partner, has the burden of showing that its charter did not permit it to become a partner and that its attempt to create such a relationship was ultra vires. (Id.) PARTNERSHIP (Continued). 11. LACK OF AUTHORITY-LIABILITY AS PARTNER.-Where a corporation is without authority under its charter to form a partnership with another, it may be held liable as a partner to prevent injustice. (Id.) 12. PARTNERSHIP FOR FIXED TERM WITHDRAWAL BY PARTNER RIGHTS OF REMAINING PARTNERS.-While under section 2451 of the Civil Code a partner may withdraw from a partnership for an agreed and fixed term, such withdrawal does not terminate the partnership interests of remaining partners or deprive them of the right to carry out the articles of copartnership. (Id.) 13. SALE OF INTEREST TO STRANGER-CONTROL AND DISPOSITION OF ASSETS-APPOINTMENT OF RECEIVER.-If one partner sells his interest in the firm to a stranger, the right to the possession and control of the firm assets vests in the other partners, and a receiver may not be appointed in the absence of a showing of prejudice to retiring partners in permitting the remaining partners to liquidate the business. (Id.) 14. ACCOUNTING GOVERNMENT BY PARTNERSHIP AGREEMENT.-The accounting between partners is to be governed by the partnership agreement. (Id.) See Contracts, 35; Pleading, 5, 6. PATENTS. See School Lands, 3; Waters and Water Rights, 2. PAYMENT. See Banks and Banking, 3-7, 10, 11; Husband and Wife, 7; Judgments, 4; Municipal Corporations, 19. PERFORMANCE. See Vendor and Vendee, 4. PERSONAL INJURIES. See Negligence. PLACE OF TRIAL. 1. APPEAL ORDER REFUSING CHANGE OF PLACE OF TRIAL-GENERAL TERMS PRESUMPTION-LACK OF DILIGENCE.-Where an order refusing to change the place of trial of an action to the residence of the defendant is general and fails to indicate any particular ground on which the court based its conclusion, the appellate court must assume in support of the order that the trial court concluded that defendant did not act with due diligence in making the motion. (Hart v. Forgeus, 327.) 2. DILIGENCE IN MAKING MOTION.-Motions for change of place of trial, being dilatory, must be presented with diligence, and a defendant may not safely rest upon his affidavit of merits and demand filed at the time he answers or demurs, but is bound at the peril of being held to have waived his right to proceed dili |