REFEREE. See Partition, 1.

RELEASE. See Negligence, 24-26; Novation, 1, 2.

REMEDIES.

1. PLEADING ELECTION OF REMEDIES-BASIS OF DOCTRINE.-The basis of the doctrine of election of remedies is founded in the proposition that where there is, by law or by contract, a choice between two remedies, which proceed upon opposite and irreconcilable claims of right, the one taken must exclude and bar the prosecution of the other. (Crittenden v. St. Hill, 107.)

2. ELECTION-WHEN NOT A WAIVER.-Where the law affords distinct, but not inconsistent, remedies, an election to follow one does not operate as a waiver of the other. (Id.)

See Corporation, 8.

REMOVAL. See Office and Officers, 1-3.

RENT. See Agency, 6; Surety, 1.

REPORT. See Partition, 1.

RESCISSION.

1. CONTRACT FOR SALE OF MOTOR TRUCK-LEASE CULMINATING TRANSACTION. Where, in an action to enforce rescission of a contract for the purchase of a motor truck, it is shown that on the day following the making of the contract the defendants executed a lease of the truck to the plaintiff which provided for deferred payments, evidenced by notes, and that the truck was not delivered until after the execution of the lease and notes, a judgment in favor of the plaintiff based upon the rescission of the contract without any rescission of the lease is unwarranted, as the lease was the conclusion and culmination of the transaction by which the rights of the parties must be adjudged. (Hogan v. Anthony, 24.)

2. RETAKING OF TRUCK-EVIDENCE-FINDINGS.-In this action to enforce a rescission of a contract for the purchase of a motor truck, it is held that the findings that the plaintiff, upon discovering the untruth of the representations concerning the capacity of the truck, informed defendants that the truck was valueless to him, that he returned it to defendants, and that they accepted and received it, has no support in the evidence, but that the evidence shows that the truck was seized by defendants for nonpayment of a deferred payment with plaintiff's acquiescence. (Id.)

RES JUDICATA.

-

HABEAS CORPUS CUSTODY OF CHILDREN APPLICATIONS IN DIFFERENT COURTS.-An adjudication of the superior court denying an

RES JUDICATA (Continued).

application for a writ of habeas corpus to obtain the custody of minor children and remanding them to the custody of the respondents is res adjudicata as to a subsequent application in the district court of appeal seeking the same relief on the same grounds and the same facts. (In re Holt, 290.)

RIPARIAN RIGHTS. See Condemnation of Land, 6.

SALARY. See Office and Officers, 6; Workmen's Compensation Act, 1.

SALE.

1. CONVERSION SALE OF GALVANIZED ICE CANS-SUFFICIENCY OF EVIDENCE. In this action for damages for the alleged unlawful conversion of galvanized ice cans, it is held that the evidence is sufficient to sustain the defendant's contention that the cans were purchased by defendant's predecessor from plaintiff. (Cyclops I. Works v. Chico Ice etc. Co., 10.)

2. SALE OF HAY-QUALITY-ABSENCE OF ESTOPPEL-A provision in a written contract for the sale of a lot of baled hay that the hay shall be of the same lot as that inspected by the agent of the purchaser serves merely to identify the hay, and is not to be taken as an admission that the purchaser had inspected all the hay sold, so as to estop it from raising any question as to its quality. (Farmers' Co. v. Pierce-Ingram Abbott Co., 174.)

3. HUSBAND AND WIFE-AUTOMOBILE IN POSSESSION OF WIFE-SEPARATE PROPERTY-ATTACHMENT.-An automobile in possession of a wife under a contract of conditional sale made by her as a separate property transaction and upon which all payments had been made by her out of her own separate property is not community property, and not subject to attachment in an action against her husband. (Rhoades v. Lyon, 615.)

4. CONDITIONAL SALE- ASSIGNMENT WITHOUT KNOWLEDGE OF PURCHASER INSTALLMENT PAYMENT - DEFAULT.-Where the vendor under a contract of conditional sale makes a sale of the property and an assignment of the contract without the knowledge of the purchaser, and the purchaser mails to the vendor a money order for the payment of an installment note in time, the purchaser cannot be charged with defaulting in payment, notwithstanding the assignee did not receive the payment until after the time for making such payment had expired. (Id.)

5. CLAIM AND DELIVERY-RIGHT TO RECOVER-LOSS BEFORE TRIAL PLEADING SUPPLEMENTAL ANSWER.-In an action in claim and delivery, the right of the plaintiff to recover depends upon the existence of the cause of action at the time of the commencement of the action, and if the defendant claims that the plaintiff has subse34 Cal. App. 56

SALE (Continued)

quently lost the right, such fact must be shown by supplemental answer. (Id.)

6. FINDING NEGATIVE OF AFFIRMATIVE DEFENSE.-A finding that plaintiff was the owner and entitled to possession is a sufficient affirmative finding as to a defense that plaintiff had defaulted in the payment of installments due upon the property sought to be recovered and had forfeited all right thereto. (Id.)

7. GOODS SOLD AND DELIVERED LIABILITY OF WIFE-SUFFICIENCY OF EVIDENCE-APPEAL.-Where in an action for goods sold and delivered there is some evidence supporting the findings to the effect that both the defendant and her husband each ordered and each individually agreed to pay for the goods, the judgment against the wife will not be disturbed on appeal. (Bamberger-Stern Co. v. Baer, 692.)

8. EXTENT OF WARRANTY AS TO MARKETABLE CONDITION OF PRODUCE -CONFLICT OF EVIDENCE-FINDING CONCLUSIVE ON APPEAL.-In an action involving a sale of produce shipped to a foreign port, where the evidence was conflicting as to whether the seller's guarantee as to the marketable condition of the produce had reference to the point of shipment or point of destination, the finding of the trial court will not be disturbed on appeal. (Columbus C. & S. Co. v. Le Baron & Nelson, 715.)

See Agency, 1, 2, 8; Corporation, 9; Estates of Deceased Persons, 1-4; Intoxicating Liquors 1; Rescission, 1.

SCHOOLS.

DISCHARGE OF TEACHER-GIVING OF NOTICE-RIGHT OF BOARD OF EDUCATION.-A board of education has the right, by virtue of the provisions of subtitle "b," subdivision 7, of section 1617 of the Political Code, to dispense with the services of any teacher in the public schools at the close of any school year by giving notice to the teacher on or before the tenth day of June that his services will not be required for the ensuing year, as the privileges and requirements of the civil service system have not as yet been made applicable to teachers in the public schools of the state. (Morse v. Board of Education, 134.)

See Contract, 17, 18.

SERVICES. See Trust, 1.

SLANDER.

INJURY TO BUSINESS-NOMINAL AND PUNITIVE DAMAGES UNWARRANTED.—In an action for damages for alleged slander, the plaintiff is not entitled to nominal and punitive damages, where defendant, who was engaged in the business of house to house distributing

SLANDER (Continued).

of circulars, in the course of a conversation with a customer of plaintiff, who was engaged in a similar business, called attention to the fact that police officers had complained to him as to the manner in which circulars advertising the customer's business were being circulated, believing that defendant was doing the distributing, there being nothing more done by defendant than to relate the fact and it making no impression upon the customer, who testified that he would continue to deal with plaintiff. (Blum v. Simpson, 574.)

SPECIFICATIONS. See Street Assessment, 3.

STATUTE OF LIMITATIONS.

ceased Persons, 1.

See Contract, 11, 12; Estates of De

STATUTE OF FRAUDS. See Appeal, 16; Contract, 10.

STAY. See Appeal. 7.

STREET ASSESSMENT.

1. MANDAMUS STREET IMPROVEMENT CONTRACT EXECUTION BY SUPERINTENDENT OF STREETS.-Mandamus will lie at the instance of property owners to compel a city superintendent of streets to enter into a contract with the successful bidder for street work to be done under the Vrooman Act. (Thoits v. Byxbee, 226.)

2. DISTRICT ASSESSMENT - PROPERTY TO BE ASSESSED - MAP-SUFFICIENCY OF RESOLUTION OF INTENTION.-Proceedings for street improvement taken under the Vrooman Act, as amended in 1913, declaring that the city council may make the expenses of the work chargeable upon a district, and that the resolution of intention shall in general terms describe the district and make reference to a plat or map approved by the city council, which shall indicate by a boundary line the extent of territory to be included, and also taken under the Improvement Act of 1915, providing that the city council shall declare in its resolution of intention the exterior boundaries of the district the property within which is to be assessed to pay the costs and expenses of the work, are not invalid, because the map of the district to which the resolution of intention referred contained a legend stating that the property colored in red was the property affected, since such statement was not a declaration that other property included within its boundaries was not benefited and would not be assessed. (Id.)

3. SPECIFICATIONS-CONCRETE-RIGHT OF SUPERINTENDENT TO CHANGE PROPORTIONS OF SAND AND ROCK.-Proceedings taken under such acts are not invalid because the specifications with reference to the concrete to be used authorized the superintendent to change the

STREET ASSESSMENT (Continued).

proportions of sand and rock and determine the number of revolu tions of the drum for mixing each batch of concrete. (Id.)

4. EXECUTION OF CONTRACT — MANDAMUS BY PROPERTY OWNER-DEMAND. The duty of a city superintendent of streets to execute a contract for street work is a public duty, and no demand by property owners is required as a condition precedent to their right to compel such execution by writ of mandate. (Id.)

5. PROPERTY OWNERS PARTIES INTERESTED.-Owners of lots that are to be improved under a street contract are sufficiently beneficially interested in the contract to petition for a writ of mandate to compel its execution by the superintendent of streets. (Id.)

6. STREET LAW-ENFORCEMENT OF LIEN-COMPLIANCE WITH JURISDICTIONAL REQUIREMENTS FOR PERFORMANCE OF WORK.-A substantial compliance with the jurisdictional requirements of the statutory provisions permitting and pertaining to the inauguration and performance of street work must be shown before the enforcement of a lien arising out of a contract for the doing of the work can be had. (Locke v. Cowan, 581.)

7. PLEADING JURISDICTIONAL PREREQUISITES.-As a matter of pleading it is not essential to the statement of a cause of action for the foreclosure of a street assessment lien to plead the particulars of jurisdictional proceedings which are an essential to the making of the contract, since it is sufficient to plead such jurisdictional prerequisites in general terms and according to their legal effect. (Id.) 8. SUFFICIENCY OF PLEADING.-In an action for the foreclosure of a street assessment lien, an allegation that upon and pursuant to due and legal proceedings had and taken by the city council, a contract in due form and containing the matters and conditions prescribed by law was made and entered into by and between plaintiff and the city for the doing of the street work, is a sufficient pleading of the jurisdictional prerequisites. (Id.)

9. EXECUTION OF BOND BY CONTRACTOR-PERFORMANCE OF WORK ACCORDING TO PLANS-BURDEN OF PROPERTY OWNER NOT INCREASED. The requirement of a resolution of intention that the contractor execute a bond to the city in a stated amount and conditioned to do the work according to the plans and specifications, and that the bond should run for a period of three years, is not to be construed as requiring the contractor to give a bond guaranteeing the quality of the work for three years, and therefore has no tendency to increase the cost of the work. (Id.)

10. RESOLUTION OF INTENTION-EXERCISE OF ORDINARY CARE BY CONTRACTOR BURDEN OF PROPERTY OWNER NOT INCREASED. The requirement of a resolution of intention to the effect that the contractor should exercise ordinary care during the performance of the work to protect the public from danger and accident imposed no obligation on him greater or more onerous than that ordinarily re