ance." Code Civ. Proc. § 1014; Vrooman v. as he sustained between said date and SepLi Po Tai, 113 Cal. 302, 45 Pac. 470. tember 1st preceding. Reference to the judg The order appealed from is therefore af- ment roll so received in evidence discloses firmed.

We concur: MELVIN, J.; LORIGAN, J.

HOROWITZ v. SPEESE. (L. A. 4081.)
(Supreme Court of California. Dec. 13, 1917.)

JUDGMENT 744 - RES JUDICATA RIGHTS
UNDER LEASE.

In a lessee's action for damage for breach of the lease by refusing to give him possession of the property and leasing it to another, judgment, in a former suit between the same parties, where it was adjudged that defendant landlord was entitled to possession of the premises under the lease involved, was conclusive, and a final determination of the lessee's rights under the lease, not having been set aside and not having been appealed from, so that the judgment roll was admissible in evidence.

Department 2. Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge.

Action by Ab. Horowitz against J. H. Speese. There was judgment for plaintiff, and, from an order denying his motion for new trial, he appeals. Affirmed.

M. O. Graves, of Los Angeles, for appellant. G. F. McCulloch, of Los Angeles, for respondent.

VICTOR E. SHAW, Judge Pro Tem. By the terms of a lease in the usual form defendant demised and let to plaintiff a certain

that the subject of said action was plaintiff's asserted right to possession of the premises in question under and by virtue of the lease here involved from which he alleged he had been ousted October 23, 1912. It was adjudged therein that defendant, and not plaintiff, was entitled to possession. This judgment, not set aside and from which no appeal was taken, upon well-settled principles of law, must be deemed a final determination of plaintiff's rights under the lease.

The theory upon which the court submitted to the jury the question of damages sustained by plaintiff for the period extending from September 1st, the date when under the terms of the lease he was to have possession, and October 23d, is that he did not have possession during all of said period, and if, notwithstanding evidence tending to show that he had refused to comply with the covenant as to payment of rent, the jury found that he was entitled to possession, it might fix the damage sustained by reason of such fact. In other words, the right of plaintiff during such time was not involved in the former litigation.

The order is affirmed.

We concur: MELVIN, J.; HENSHAW, J.

HILL et al. v. RANSDELL.
(Supreme Court of California.
WILLS 665-CONSTRUCTION
"ATTEMPT TO CONTEST."

(L. A. 8274.) Dec. 7, 1917.) "CONTEST”—

building for the term of five years from In re HILL'S ESTATE. In re HILL et al. September 1, 1912, at a monthly rental of $250, payable in advance, and containing a clause to the effect that in case of default in the making of such payments, or in complying with any of the covenants therein contained, the lessor might re-enter and remove all persons therefrom. The action is by the lessee to recover damage for the breach of the lease, plaintiff claiming that defendant refused to give him possession of the property and leased it to another. A jury trial was had resulting in a verdict of one dollar in favor of plaintiff for which judgment was entered. The appeal is from an order of the court denying plaintiff's motion for a new trial.

Appellant's chief claim for a reversal, and conceded to be the only error necessary to consider if said contention be not sustained, is that the court erred in admitting in evidence the judgment roll in a former suit between the same parties wherein it was by the superior court on January 14, 1913, adjudged that defendant was entitled to possession of said leased premises, and, in connection therewith, instructed the jury that plaintiff's right to the possession of the premises terminated on October 23, 1912, and that plaintiff's damage must be deemed limited to such

One who applied in Michigan for letters of administration on the ground that deceased died intestate, but stated that there were instruments on file in the probate court of Oakland county, Cal., alleged to be a will, and later objected to jurisdiction of the California court, but alleged such opposition was not a contest or an attempt to contest, but that the will should be probated in Michigan, did not forfeit her rights under the will, which provided that the rights of any one contesting or attempting to contest should be forfeited, because such actions did not show any "contest" or attempt to contest.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Contest.]

Department 2. Appeal from Superior Court, City and County of San Francisco; Thomas F. Graham, Judge.

In the matter of the estate of Joshua Hill, deceased. Petition by Ellen P. Hill, J. Price Hill, and Hunt C. Hill, and Hunt C. Hill, trustee, for the forfeiture of the interests of Abbie R. Ransdell under the will of deceased and for partial distribution. From a decree denying the forfeiture, petitioners appeal. Affirmed.

Ira S. Lillick and Hill & Sealby, all of separately nor cumulatively can it be said San Francisco, for appellants. Lloyd S. Ac- that the acts of this respondent measure up kerman, of San Francisco, and Samuel J. either to a contest or to an attempt to conPatterson, for respondent. test the allowance of the will. True, in her petition before the Michigan courts she

HENSHAW, J. In his will the deceased, expressed her belief that her father had died Joshua Hill, declared as follows:

"In the event that my said wife or any of my said children, shall contest or attempt to contest the allowance of this instrument as and for my last will and testament, for any reason or upon any grounds whatever, then such portions of my estate, or other benefits as have heretofore been directed to be paid to the person so contesting shall be by such person or persons forfeited, etc."

intestate, but at the same time she advised the court that instruments were in existence which were asserted to be wills of deceased. It cannot be said that here was even an attempt to contest the validity of any of these purported wills which at that time had not been offered for probate, and the fairness of the respondent is evidenced

The testator died in the city and county by the information which she conveys to the of San Francisco leaving surviving him a court of the existence of these written inwidow and five children. The eldest of these struments. Even less weight attaches to her children, Abbie H. Ransdell, respondent action in filing an opposition in the courts herein, filed a petition for letters of administration upon the estate of her father in the probate court of Oakland county, state of Michigan, in which she alleged that "said deceased died on the 29th day of September, 1915, leaving no last will and testament as I am informed and believe," and she also declared:

"It is alleged that there are instruments on file in the probate court of Oakland county and in the state of California, purporting to be the last wills and testaments of said deceased."

Thereafter the will of the deceased was offered for probate in the superior court of the city and county of San Francisco. At that time there was pending in the probate court of Oakland county, Mich., a petition for the probate of decedent's will filed by Frank L. Perry, one of the trustees named therein. Respondent, having been advised by her attorneys that there could not be two forums in separate states each possessing original jurisdiction over the will of deceased, filed her opposition to the probate of the will in San Francisco. In this the respondent declared:

"This opposition is not a contest nor an attempt to contest the allowance or admission to probate of the will of Joshua Hill as the last will and testament of said decedent, and that this showing is made solely for the purpose of objecting to the jurisdiction of the court to grant the probate of the will of said decedent as filed." The ground of opposition was that above indicated, that original jurisdiction to admit the will to probate was in the courts of the state of Michigan. Upon petition for partial distribution, it was urged that respondent by her action and conduct as above set forth had forfeited all her rights under the will. The court held to the contrary and this appeal followed.

of California. In no sense does it amount to an attempt to contest the allowance of an instrument for an interested party to say that the court of original jurisdiction for the reception in probate of this will is a court other than the one to which it had been presented.

The order and decree appealed from are therefore affirmed.

CREDIT."

Where sum awarded plaintiff in condemnation proceedings was in the hands of the county treasurer on the first Monday of March, it was assessable against the treasurer in view of Pol. Code, 83647, providing that money and property in litigation in possession of a county treasurer must be assessed to such treasurer, etc., and plaintiff was not entitled to reduction from such sum of unsecured debts owing by him and assessed to bona fide residents of the state as provided by sections 3628, 3629, subd. 6, 3650, subd. 15; such sum not being a "solvent credit" within the last-mentioned sections.

[Ed. Note.-For other definitions, see Words and Phrases, Solvent Credits.] 2. TAXATION

-PRESUMPTION.

597-ASSESSMENTS-APPEAL

On appeal from order sustaining city's demurrer to plaintiff's complaint for recovery of taxes paid by county treasurer on money awarded plaintiff in condemnation proceedings, and paid by city to county treasurer, it will be presumed, in the absence of allegation to the contrary, that the assessment was made to the county treasurer, as required by Pol. Code, § 3647. 3. TAXATION 333 REDUCTION OF DEBTS FROM CREDITS-CONDITION PRECEDENT.

We need not here be at pains to elaborate upon the meaning which shall be given to the language employed by the testator, "con test or attempt to contest." This has been done sufficiently in the cases of In re Garcelon's Estate, 104 Cal. 570, 38 Pac. 414, 32 L. R. A. 595, 43 Am. St. Ry. 134, and Estate of Hite, 155 Cal. 436, 101 Pac. 443, 21 L. R. A. (N. S.) 953, 17 Ann. Cas. 993. Neither 3629, subd. 6.

in condemnation proceedings by defendant city, Conceding that the money awarded plaintiff on deposit with the county treasurer, constituted a "solvent credit," from which debts owed by plaintiff could be deducted by the assessor, plaintiff was not entitled to a deduction unless the amount of such debts were shown by a sworn statement, as required by Pol. Code, §

Department 1. Appeal from Superior Court, Los Angeles County; Leslie R. Hewitt, Judge.

Action by Angelo Bessolo against the City of Los Angeles. Judgment for defendant, and plaintiff appeals. Affirmed.

Courtney Lacey, of Los Angeles, for appellant. Albert Lee Stephens, City Atty., and Charles S. Burnell, Asst. City Atty., both of Los Angeles, for respondent.

"Money and property in litigation in possession of a county treasurer, of a court, county clerk, or receiver, must be assessed to such treasurer, clerk, or receiver, and the taxes be paid thereon under the direction of the court."

The right to tax money or other property under this section "does not depend upon the ownership of the money or property, nor the final result of the litigation." Los Angeles v. L. A. City Water Co., 137 Cal. 699, 70 Pac. 770. Such money or property is to be assessed to the officer in whose hands it is, and an assessment to the real or ultimate owner is not authorized. City of San Luis Obispo v. Pettit, 87 Cal. 499, 25 Pac. 694.

[2] There being no allegation to the contrary, we must assume that the assessment in this case was made, as it properly should have been, to the treasurer. Statutory provisions for the deduction of debts from solvent credits (Pol. Code, §§ 3628, 3629, subd. 6, 3650, subd. 15) clearly contemplate the deduction of such debts only as are owed by the person to whom the solvent credits are assessed-not a deduction of debts owed by one person from money, property, or credits assessed to another.

SLOSS, J. A demurrer to plaintiff's complaint was sustained, with leave to amend. No amendment having been made within the time allowed, judgment was given in favor of the defendant. The plaintiff appeals. The complaint alleges that in October, 1911, the defendant, the city of Los Angeles, commenced an action against the plaintiff and others to condemn certain lands for public uses. In that action a parcel of land belonging to the plaintiff, Bessolo, was condemned upon payment of $11,310. The sum so awarded to plaintiff was paid by the city to the county treasurer, and it was in the treasurer's hands on the first Monday of March, 1913. After receiving from the county treas-on urer a statement of moneys in his hands, belonging to individuals, the city assessor of the defendant city assessed said sum belonging to plaintiff for Los Angeles city taxes for the year 1913-14, and collected a tax of $174.26 thereon. This tax was paid by the county treasurer out of plaintiff's moneys, without plaintiff's knowledge or consent. On the first Monday in March, 1913, the solvent credits owned by plaintiff, including the $11,310 so awarded to him, aggregated $11,863 and no more. The unsecured debts then owing by him, and assessed to bona fide residents of the state, aggregated $15,050, a sum exceeding the solvent credits owned by him. On the first Monday in March, 1913, plaintiff did not own any solvent credits subject to assessment, and said sum of $11,310 was exempt from taxation and was erroneously assessed. On April 16, 1913, plaintiff presented to the city a claim which set forth the foregoing facts regarding the assessment and collection of taxes, and asked a return of $174.26. Such return was refused, and the com

plaint, accordingly, prays judgment for the

amount of the tax thus collected.

[1] The demurrer was based on want of facts, lack of jurisdiction of the subject, and various provisions of the statutes of limitations. Regardless of other points made, we think the demurrer was properly sustained on the first of these grounds. The fund in the hands of the treasurer was not such a "solvent credit" as, in the purview of our tax laws, is subject to the deduction of debts owed by the plaintiff. It was covered by the terms of section 3647 of the Political Code, which provides that:

[3] But if it be conceded that the moneys deposit constituted a "solvent credit," from which debts owed by plaintiff could be deducted, he was still not entitled to the deduction unless the amount of such debts were shown by the sworn statement which, on demand of the assessor, the taxpayer was required to make. Pol. Code, § 3629, subd. 6. The complaint does not allege that the assessor failed to exact a statement from plaintiff, or that plaintiff made a statement of any kind, to say nothing of one showing the debts owed by him. See Henne v. County of Los Angeles, 129 Cal. 297, 61 Pac. 1081; Brenner v. Los Angeles, 160 Cal. 72, 75, 116 Pac. 397. The complaint does not therefore exhibit the facts necessary to support plaintiff's claim of a right to have the deduction made. The judgment is affirmed.

We concur: SHAW, J.; LAWLOR, J.

E. AIGELTINGER, Inc., v. BURKE et al. (S. F. 7590.)

Dec. 7, 1917. Rehearing Denied Jan. 3, 1918.)

(Supreme Court of California.

1. CORPORATIONS 397-AUTHORITY OF CORPORATE AGENT-PROOF.

The authority of a corporate agent need not be shown by a resolution or other express declaration of the directors, but, like other facts, may be proved by circumstantial evidence. 2. CORPORATIONS

AGENT-AUTHORITY.

406(4)

CORPORATE

Where one has actual charge and management of the general business of a corporation with the knowledge of the members or directors, it is sufficient evidence of authority, and the behalf within the apparent scope of the busicompany will be bound by his contracts on its ness intrusted to him.

3. CORPORATIONS ~425(4)—EMPLOYMENT BY | tractor under a corporation known as LindCORPORATE AGENT. gren Company, who was the original contractor for the erection of a building for the Olympic Club in San Francisco. The materials were furnished for use, and were used, in said building, and in the completion of

A corporation which suffers appearances to exist, and its officers and agents to act so as to give one employed by them reason to believe that he is employed by the company, becomes liable to such person as his employer to pay for 4. CORPORATIONS 426(10)—AGENCY-RATI- the subcontract of said G. W. Burke ComFICATION ACCEPTANCE OF BENEFITS OF CONTRACT.

services rendered.

A corporation cannot knowingly accept the benefits of a contract made in its behalf, or in which it is interested, and refuse to be bound by its terms and conditions, as it ratifies the agreement by the acceptance of benefits, and is bound thereby.

5. MECHANICS' LIENS 208-CONTRACT OF MATERIALMAN AND SUBCONTRACTOR-SCOPE OF CLAUSE.

The clause of an agreement by a materialman and a subcontractor purporting to release the original contractor to erect a building and the owner from any and all liens for labor and materials furnished by them" referred to and included materials and labor previously furnished for the performance of the subcontract, where, according to the terms of the agreement, the original contractor was to pay for all materials and labor subsequently furnished and done to complete the subcontract.

6. MECHANICS' LIENS 281(1) — REPRESEN TATION BY MATERIALMAN TO CONTRACTOR -SUFFICIENCY OF EVIDENCE.

In an action to foreclose a lien for materials furnished by plaintiff materialman, a corporation, to a subcontractor, evidence held to support the finding that the individual who was the moving spirit in plaintiff company represented by conduct and conversation to the original contractor for the work that he had personally

furnished the materials to the subcontractor.
7. MECHANICS' LIENS 105-JOINT INTER-

EST IN SUBCONTRACT.

pany. Issues were formed, a trial was had, and findings and judgment were given in favor of the defendant Lindgren Company. The plaintiff appeals from the judgment.

The only controversy upon this appeal is upon the question whether or not, by reason of a certain agreement executed by E. Aigeltinger, G. W. Burke Company, and Lindgren Company, on October 13, 1911, and the circumstances under which said agreement was made and carried out, the Aigeltinger Company is estopped from claiming a lien on the property. It is admitted that the notice of lien was duly filed within the time allowed by law, and that the amount claimed therein was justly due from G. W. Burke Company to the Aigeltinger Company for materials furnished by the latter to the former, as subcontractor, for use in said building.

The subcontract of the Burke Company with the Lindgren Company, under which the materials were furnished, was executed on February 14, 1911. Work was performed thereunder and a large part thereof was completed prior to October 13, 1911. time the Burke Company and Aigeltinger applied to Lindgren Company for assistance in carrying out the subcontract, and in con

At that

Where an individual was personally interested as a partner in the contract whereby a corporation undertook to plaster a building un-sequence of said application the contract of der construction, he and the company were October 13, 1911, was executed. The findjointly interested in such subcontract for plas- ings of the court relating to the subject of tering. the estoppel and the effect of the last-mentioned contract were somewhat elaborate and need to be stated in detail.

8. MECHANICS' LIENS MAN'S INTEREST IN CIENCY OF EVIDENCE.

281(1)-MATERIALSUBCONTRACT-SUFFI

In an action to foreclose a lien for value

of materials furnished by plaintiff corporation to a subcontractor to plaster a building under erection, evidence held to sustain the finding that plaintiff was interested in the subcontract for plastering; the individual who was its moving spirit having obtained the interest

acting in its behalf.

Department 1. Appeal from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge.

Action by E Aigeltinger, Incorporated, against G. W. Burke and the Lindgren Company. From a judgment for the Lindgren Company, plaintiff appeals. Judgment affirmed.

Aigeltinger was at all times the president of the Aigeltinger Company, and exercised entire control of its business and affairs. The company adopted and used the name of E. Aigeltinger as its corporate name. permitted him to mingle his own funds and

It

the corporate funds, and otherwise to commingle his personal identity and affairs with the corporate business. The Lindgren Company had no knowledge, prior to the filing of the plaintiff's claim of lien herein, that E. Aigeltinger was a corporation, or that there was a corporation by the name of "E. Aigeltinger, Incorporated," but, on the contrary knew one E. Aigeltinger as a person and as a friend of W. G. Burke, president of the Burke Company, and as bondsman of the said company on said subcontract, and as a person financially interested as a partner with said Burke Company in said subconSHAW, J. This is an action to foreclose tract, but had no knowledge or information a lien for the value of materials alleged to that the materials for which plaintiff's lien have been furnished by the plaintiff to G. is claimed were furnished or sold by E. W. Burke Company, a corporation, subcon-¦ Aigeltinger, Incorporated, as a corporation.

Wal J. Tuska, of San Francisco, for appellant. Francis V. Keesling and C. A. S. Frost, both of San Francisco, for respond

ent.

.