hereinafter described." He further alleges "that said buildings have been completed under said contract and all the materials agreed to be furnished by plaintiff have been furnished and said contract has upon the part of plaintiff been fully kept and performed." He then alleges "that the lands upon which said buildings were so erected under said contract are situate," etc. (here follows description), "that at the date of said contract mentioned above and at the date of the furnishing of said materials and the performing of said labor as aforesaid the said defendant Jolley was the owner of the lands hereinabove described; . . . that the said buildings were erected thereon, and defendant knew that plaintiff was furnishing materials as hereinbefore set forth." Finally, he alleges "that plaintiff furnished said materials for said buildings between the first day of May, 1919, and the twenty-eighth day of July, 1919, and that all of said materials were furnished prior to the completion of said buildings and that the said buildings were completed on or about the first day of August, 1919."

[4] We deem the foregoing allegations sufficient, in the absence of a special demurrer upon the ground of uncertainty, to enable a reasonable inference to be drawn that the materials in question were agreed to be furnished for and were furnished for and were used in the construction of the designated structures upon the premises of the defendant sought to be charged with this lien. In addition to the foregoing averments in the body of the complaint, the plaintiff's claim of lien was attached to it as an exhibit and expressly made a part thereof. In such claim of lien it was asserted that the materials for the value of which said lien was sought were furnished by the claimant to the owner of the described premises under an agreement to supply the same for the purposes of constructing and erecting a building or buildings upon said premises, and that the claimant did furnish such materials "to be used and which were actually used in the construction of said building or buildings."

[5] The answer of the defendant does not deny that the materials in question were furnished or that they were used in the construction of the buildings upon his premises, but merely denies that the plaintiff was the person who furnished the same, and in that behalf the defendant alleges that the owner or proprietor of the Grenada Lumber Company was

not the plaintiff, but was one A. L. Harlow, who was doing business under that name and "that all of the materials furnished defendant for the erection of buildings upon the property described in plaintiff's complaint were furnished by one A. L. Harlow, all of which plaintiff well knows." Such being the form and content of defendant's answer, we think that whatever uncertainty there may have been in the plaintiff's complaint in the respects indicated in the defendant's present contention was waived by the defendant's failure to present a special demurrer upon that ground, and we are further of the opinion that whatever infirmities there may have been in such complaint in that respect were eked out by the form and substance of the defendant's

answer.

Turning to the authorities cited by the appellant in support of his contention, we find that in the case of Cohn v. Wright, supra, upon which the defendant chiefly relies, there was a special demurrer to the complaint upon the ground of uncertainty in the precise respect in which the complaint herein is asserted to be insufficient, and that this court based its decision upon the ground that such demurrer should have been sustained. In each of the other cases cited by the appellant upon this point it was the sufficiency of the plaintiff's proof, not of his pleading, which was the subject of review. On the other hand, in the case of Reed v. Norton, 90 Cal. 590 [26 Pac. 767], the complaint alleged that "said firm sold and delivered to said Norton certain hardware and building material to be used in the erection and construction of said building and affixed and attached thereto." This allegation was held to be sufficient to show that the materials were used in the building, in the absence of a special demurrer. We conclude that there is no merit in the appellant's first contention.

This conclusion has application, also, in determining the appellant's second contention as to the sufficiency of the findings to support the judgment. [6] This appeal, being upon the judgment-roll alone, no question can arise as to the sufficiency of the evidence to sustain the averments of the complaint and to justify the findings of the court. [7] It is a well-established principle that whatever uncertainties may exist in the findings of the court are to be so resolved, if reasonably possible, to support the judgment rather than

to defeat it. (Breeze v. Brooks, 97 Cal. 72 [22 L. R. A. 257, 31 Pac. 742]; Warren v. Hopkins, 110 Cal. 506 [42 Pac. 986]; Krasky v. Wollpert, 134 Cal. 338 [66 Pac. 309]; People v. McCue, 150 Cal. 196 [88 Pac. 899]; Murphy v. Stelling, 8 Cal. App. 702 [97 Pac. 672].) The findings in the instant case follow substantially the wording of the complaint and, in addition to so doing, specifically find generally that all of the allegations of said complaint are true. Having determined that the asserted defects in said complaint are at the most mere uncertainties, it follows, under the foregoing authorities, that such uncertainties are to be resolved, if it is fairly reasonable so to do, so as to sustain the judgment. Applying this rule, we think that the inference may be fairly drawn from such findings that the materials furnished by the plaintiff to the defendant under his agreement so to do were used in the construction of the buildings upon the premises upon which the plaintiff claims and is awarded a lien.

[8] The appellant's final contention to the effect that the judgment is erroneous in its imposition of said lien upon the whole of said defendant's lands, we find to be without merit. The complaint alleged that the whole of the defendant's described premises were required for the convenient use and occupation of said buildings. The answer admitted this averment by failing to deny the same. The evidence must be presumed to have fully supported this averment, even if it had not been admitted to be true. The findings expressly state that the whole of the described premises is required for the use and occupation of the buildings erected thereon. This state of the record leaves no room for the application of the cases of Tunis v. Lakeport etc. Assn., 98 Cal. 285 [33 Pac. 63, 447], and Cowan v. Griffith, 108 Cal. 224 [49 Am. St. Rep. 82, 41 Pac. 42], cited by the appellant to the facts of the case at bar, since in each of those cases the supreme court had the evidence before it and held the same insufficient to support the judgment. Judgment affirmed.

Richards, J., pro tem., Shaw, C. J., Lawlor, J., Wilbur, J., Waste, J., Shurtleff, J., and Sloane, J., concurred.

[Sac. No. 3300. In Bank.-February 25, 1922.]

JOHN N. BOLES, Respondent, v. L. C. STILES, Appellant.

[1] CLAIM AND DELIVERY - RIGHT TO IMMEDIATE POSSESSION ESSENTIAL. In order to sustain an action in claim and delivery a plaintiff must have the right to immediate and exclusive possession of the property at the time of the commencement of the action. [2] ID.-TITLE AND POSSESSION OF AUTOMOBILE-MOTOR VEHICLE ACT. In an action to recover possession of an automobile or its value in case delivery cannot be had, one who has by his own act and agreement placed another in immediate and exclusive possession of the automobile is not in a position to invoke the provision of the state Motor Vehicle Act (Stats. 1919, p. 191), providing that delivery shall not be deemed to have been made, nor title passed, to a transferee until he has received a certificate of registration.

APPEAL from a judgment of the Superior Court of Colusa County. H. D. Gregory, Judge. Affirmed.

The facts are stated in the opinion of the court.

Seth Millington, Jr., for Appellant.

Charles K. Atran for Respondent.

Leroy M. Edwards, Norman A. Bailie and Overton, Lyman & Plumb, Amici Curiae.

WASTE, J.-Plaintiff brought this action against the defendant to recover the possession of an automobile, or its value in case delivery could not be had. Judgment was entered in his favor and the defendant has appealed.

Plaintiff and defendant were engaged in business as partners. By mutual agreement, evidenced by a writing to that effect, the partnership was dissolved, and the parties divided the partnership property between them. As part of the division it was agreed that the plaintiff should take and keep as his own an automobile which had been purchased by the firm from a third party under a contract of conditional sale. The agreement between the plaintiff and defendant at the time of the dissolution of the partnership was that the plaintiff should pay all of the unpaid installments on the purchase price of the machine, and, in addi

tion, pay the defendant $135 for his interest in the same. Upon such dissolution of the partnership and division of the property the plaintiff took possession of the machine as his own separate property and used it exclusively for more than six months for his own private purposes and in conducting his own private affairs. He continued the payment of the installments for its purchase. All this was with the knowledge and at the instance of the defendant.

A controversy having arisen between the parties as to the amount due from the plaintiff to the defendant by reason of the settlement of their partnership affairs, the defendant, finding the automobile unattended in front of the plaintiff's office, took possession of it and drove it to his own garage, where he kept it and refused to return it to the possession of the plaintiff, although the latter made repeated demands for its possession.

The foregoing facts appear from the testimony of the plaintiff. The defendant admitted there was a dissolution of the partnership and a division of certain articles of personal property between the parties. He claims, however, that it was not his understanding that the plaintiff should take into his exclusive possession the automobile and the other property until certain adjustments in the affairs of the firm had been finally made. The only effect of this testimony was to raise a conflict in the evidence, which was resolved by the trial court in favor of the plaintiff's contention. Its findings in that behalf are amply supported by the record and sufficiently support its conclusion that the plaintiff had such right to the exclusive possession of the automobile as to enable him to maintain the action for the recovery of the same. On this appeal the defendant apparently does not rely for a reversal as much upon the point that the findings of fact as to the transaction above referred to are not supported, as he does upon the contention that under certain provisions of the State Motor Vehicle Act (Stats. 1919, .p. 191) there was no legal vesting of sole title to the automobile in dispute in the plaintiff by defendant, and, consequently, the plaintiff is not in position to maintain this action. The appellant relies upon that portion of section 8 of the act, which relates to the transfer and registration of ownership of any registered motor vehicle, the express provision reading: "Upon such registration the department shall

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