Bells had done so well for Senator Stanford that plaintiff supposed the former would be willing to do something for him was not compatible with his claim of ownership, for the reason that if Hinda Rose belonged to him he was the fortunate man, and not Stanford. These and other circumstances, not very important when considered singly, but all pointing in a given direction, were, we think, when combined, sufficient to warrant the court below in finding that the negotiations which began before the birth of the colt, and were not consummated until it was in esse, culminated in the sale of both, and were so understood by the plaintiff at the time, as it certainly was by the defendant; and, as a consequence, warranted the finding of the ultimate fact of ownership in defendant, and the further finding, as a sequence thereof, that the claim of plaintiff was barred under the three-years limitation of the statute. It must be borne in mind that defendant, Stanford, did not himself conduct the negotiations, and that Harris F. Covey, who acted for him, had died before the cause was tried. F. W. Covey, who held the power of attorney from the plaintiff, was not authorized thereby to sell the colt, but the final sale was the result of telegraphic communications; and, as they are lost, we can only conclude as to the result of them by the circumstances and conduct of the parties, all of which are consistent with a sale, and inconsistent with any, rational theory of continued ownership in plaintiff. We therefore recommend that the judgment and order appealed from be affirmed.

We concur: VANCLIEF, C.; BRITT, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

(112 Cal. 624)

PLATT v. BUTCHER. (No. 18,324.) (Supreme Court of California. May 19, 1896.) STATUTE OF FRAUDS-CONTRACT REQUIRED TO BE IN WRITING-EXTENSION BY PAROL. Under the statute of frauds (Civ. Code, § 1624, subd. 6), requiring "an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or commission" to be in writing, a valid extension of such a written agreement cannot be made by parol.

In bank. Appeal from superior court, Solano county; A. J. Buckles, Judge.

Action by G. N. Platt against William Butcher. Judgment for plaintiff, and defendant appeals. Reversed.

Geo. A. Lamont, for appellant. A. J. Dobbins and Chas. A. Swisler, for respondent.

GAROUTTE, J. This is an action by a realestate broker to recover commissions upon a

sale of real estate. Judgment went against defendant, and he appeals. The contract of employment was in writing, and by its teras was to remain in full force and effect until September 1, 1885. A short time prior to that date, by parol agreement, the time for performance was extended; and during such extension of time the broker found a purchaser for the land, and a sale was made. The merits of the present litigation are dependent solely upon the validity of the parol agreement extending the time for performance.

By section 1624 of the Civil Code, certain contracts are declared invalid "unless the same or some note or memorandum thereof be in writing and subscribed by the party to be charged or his agent. (6) An agree ment authorizing or employing an agent or broker to purchase or sell real estate for conpensation or commission." And this provision of law is invoked to defeat plaintifs claims. But section 1698 of the same Code declares that a contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise; and plaintiff insists that the parol extension of time for the performance of the original written contract, coupled with the fact that he found a purchaser within such extension, to whom the land was sold, constitutes an executed parol agreement, and thereby validates the contract. Plaintiff has no cause of action, upon the showing made. The parol agreement in this case was a covenant to extend the time for the performance of a certain contract. If that covenant be construed as one in effect covering all the terms of the original written contract, then it was not an alteration or variation of that contract, but the creation of a new one, and, to be valid, should have been in writing. If the covenant be simply and solely one extending the time for the performance of a prior written contract, it cannot be that "oral agreement” spoken of in said section 1698; for it is not the original contract, as altered, which must be executed, but the oral agreement alone, and an oral agreement simply extending time cannot be executed, for there is nothing to execute. No affirmative action is required. Such an agreement calls for nothing to be done, and expires by mere lapse of time.

Another view of this matter, even more conclusive against plaintiff's contention, presents itself: An oral agreement does not alter a contract in writing until it becomes an executed oral agreement. The oral agreement relied upon in this case was not valid when made, for it was not executed at that time. According to plaintiff's claims, it was not executed until months after September 1, 1885,-the time fixed for the expiration of the original contract itself. Upon September 1, 1885, the written contract expired by express provision, unless some valid agreement then in existence kept it alive, but at that time there was no valid agreement in existence. The oral

agreement was no agreement until executed, and it was not executed until long after that date, and when executed there was no existing contract in writing which might or could be altered. The date when an oral agreement takes effect as altering a written contract is the date when it is executed. It thea has the same effect as an agreement in writing of that date altering the original contract. Under the facts of this case, at the time the oral agreement was executed there was no contract in writing upon which an executed oral agreement could take effect. For the foregoing reasons the judgment is reversed.

We concur: HARRISON, J.; VAN FLEET, J.; HENSHAW, J.; MCFARLAND, J.

(112 Cal. 613)

TATE FRATT. (Sac. 28.)1 (Supreme Court of California. May 13, 1896.) PARTY WALLS-RIGHT TO MAKE ADDITIONSOPINION EVIDENCE-APPEAL-OBJECTIONS TO

FINDING-HARMLESS ERROR.

1. The east wall of plaintiff's building was the west wall of defendant's, and by it the joists of both buildings were supported. The wall from the base to the grade was 16 inches thick, from there to the ceiling 12 inches, and above the ceiling to the top of the fire wall 8 inches, the offset being on plaintiff's side. Held, that the wall must be considered as a party wall throughout its whole extent, upon which either party had the right to make additions.

were

2. Where a witness testifying as to a survey and monuments incidentally stated, "I do not think the down-town monuments changed," the remark was inconsequential, and the overruling of an objection thereto was not prejudicial.

3. An inadmissible remark having been made before the naking of an objection to its admission, the proper remedy was by motion to strike out, a failure to adopt which constituted a waiver of objection.

4. A witness, being asked if he could tell whether plaintiff's or defendant's building was constructed first, answered that defendant's building was first erected, and gave the facts showing such to be the case. Held, that the testimony was not objectionable, as being opinion evidence.

5. An objection to a finding of fact containing no specification of the particulars wherein the finding was not justified by the evidence will not be considered on appeal.

Commissioners' decision. Department 2. Appeal from superior court, Sacramento county; Matt F. Johnson, Judge.

Action by J. D. Tate against F. W. Fratt to enjoin defendant from making additions to a party wall. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Affirmed.

A. L. Hart, for appellant. Holl & Dunn, for respondent.

BELCHER, C. The plaintiff and defendant are the owners of adjacent lots, situate in the block bounded by I and J and Third and 1 Rehearing denied.

Fourth streets, in the city of Sacramento, each lot having a frontage of 20 feet on J street, and a depth of 100 feet. Many years ago, brick buildings, then two stories high, but now only one story above the grade of J street, were erected on these lots by the grantors of plaintiff and defendant. Up to 1881 defendant's building extended back from J street only 70 feet, but in that year it was enlarged so as to cover the whole lot. The east wall of plaintiff's building is the west wall of defendant's building, and by it the joists of both buildings are supported. This wall, at its base and extending as high as the present grade of J street, is 16 inches thick, and above that to the ceiling joists it is 12 inches thick, and from there to the top of the fire wall, about 4 feet, it is 8 inches thick; the offset of 4 inches being on the plaintiff's side of the wall. The defendant concluded to add another story to his building, and for that purpose commenced to build up the said 8-inch wall. When he had built it up about 6 feet, the plaintiff brought this action to obtain an injunction restraining him from constructing the new wall or any wall on the old 8-inch wall. It was alleged in the complaint that the plaintiff was the owner of the lot on which his building stood, and of a strip of land along the west side of defendant's lot about 8 inches in width; that the said wall was wholly on his land, and was owned by him; that the wall was not sufficient in strength to support a building higher than his own building; that de fendant had commenced to construct, and was engaged in constructing, on the top of the east wall of plaintiff's building, another and additional wall, eight inches in thickness, and that he intended to construct the same about 14 feet high, and make it the west wall of the second story of the building cast of plaintiff's building; and that defendant was constructing the said wall with 6 openings for windows therein, facing to the west and over the top of plaintiff's said building. The defendant, by his answer, alleged that he was the owner of the west quarter of lot 7, on which his building was constructed, and denied that plaintiff was the owner of a strip of land along the west side of said lot, about 8 inches or any number of inches wide, or ever had possession thereof; alleged that the wall in controversy stands wholly upon his lot, and no part thereof stands or ever stood upon land belonging to the plaintiff; alleged that neither the plaintiff nor his grantors ever owned the said wall or had any possession thereof, other than such as he or they acquired by using the same to insert therein and rest upon it the floor and ceiling joists and roof timbers of his building, and to inclose the eastern side of said building; alleged that, before he was informed of this proceeding to enjoin him, he had commenced the construction of a second story upon his building, and had constructed a new wall,

8 inches thick and about 6 feet high, on top of the old 8-inch wall, which was intended to form the western wall of his said second story; and denied that he intended to construct the new wall to a greater height than 10 feet and 6 inches; denied that he intended to make any openings for windows or for any other purpose in said new wall, except such as had already been made before the injunction was granted; and alleged that he was ready and willing to close up said openings and windows with a solid brick wall.

The court found, among other things, that the wall in controversy stands wholly upon the defendant's lot; that "this wall when originally built was intended as a party wall, and when it was afterwards raised in height, and extended further back, it continued to be a party wall, and the same now is, and during all the dates and time mentioned in the complaint it was, a party wall, and has been used as such by the adjacent owners ever since its construction, except the north thirty feet thereof, which was not used by defendant until he extended his building back the additional thirty feet in 1881, but this extension was built as and for a party wall, and has been used as such by the defendant continuously since 1881"; that the new wall which defendant had commenced to build "does not interfere in any way with plaintiff's building, and it does not endanger the said party wall on plaintiff's said building": and that "the eight-inch wall constructed by the defendant on top of said party wall is a solid wall, and has no opening for either doors or windows." And, as conclusions of law, the court found that the defendant had a right to raise said party wall to the height of his second story by constructing an eightinch wall on the top thereof, and that the plaintiff was not entitled to an injunction restraining defendant from constructing said wall; that the plaintiff had not been damaged by any act of the defendant; and that the defendant was entitled to judgment dismissing the action. Judgment was accordingly so entered, from which, and from an order denying a new trial, the plaintiff appeals.

Most of the findings of fact above referred to are assailed as not justified by the evidence, but we do not deem it necessary to follow the arguments of counsel in their discussion of these questions. The principal question in the case is, was the wall on which defendant had commenced to build a party wall? We think it clearly appears from the evidence that it was, and that the court was fully justified in so finding.

Whether the said wall stands wholly upon defendant's lot or not is a question which need not be considered. It arose only incidentally, and the finding upon it would not be determinative as to the true line between the lots if the wall should be torn down, and a controversy should then arise as to

that line. It is not necessary that a party wall should stand half upon each of the adjoining parcels of land. It may stand half upon each, or wholly upon one, and may or may not be the common property of the two proprietors. Washb. Real Prop. (5th Ed.) p. 386; Bloch v. Isham, 92 Am Dec. 289. And it seems to be settled law that, where there is a party wall, each of the owners may increase the height thereof when it can be done without injury to the adjoining building, and without impairing the value of the cross-easements to which the adjoining proprietor is entitled. Brooks v. Curtis, 10 Am. Rep. 545; Graves v. Smith, (Ala.) 6 South. 308; Everett v. Edwards (Mass.) 22 N. E. 52. Here the evidence was quite sufficient to show that the wall could be constructed without injury to the adjoining building.

The finding that the new wall constructed by defendant "is a solid wall, and has no opening for either doors or windows," is objected to as not sustained by the evidence or by the pleadings. But the statement contains no specification of the particulars wherein this finding is not justified by the evidence, and the objection as to the sufficiency of the evidence cannot therefore be considered. It will be presumed, and nothing to the contrary appears, that before the trial defendant had closed up the openings in the wall, which he at first left, as he stated in his answer he was ready and willing to do. We do not think any supplemental answer was necessary setting up the fact that he had closed the openings.

Two rulings of the court upon the admission of evidence are urged as erroneous.

The witness Boyd was a surveyor, and, in giving his testimony, stated: "I do not think the down-town monuments were changed." Counsel for plaintiff then objected to the witness testifying as to what he thought about the matter, and the objection was overruled. The witness had been testifying about certain monuments, and a survey made by Mr. Bassett, and incidentally made the said remark. No motion was made to strike the remark out, and the witness went on testifying as to the facts without objec tion. It is clear that there was no prejudicial error in the ruling complained of as to this witness, for two reasons: (1) The remark objected to was entirely inconsequential. (2) The remark was made before the objection, and. if counsel deemed it injurious to his case, a motion should have been made to strike it out.

The witness Goodell had lived in the city of Sacramento 43 years, and was an architect by profession, and had been engaged in the business of his profession for 25 years. He was asked: "Could you tell, from your examination, as to whether Tate's building or Fratt's building was constructed first?" The question was objected to by counsel for

would involve a matter of opinion, and the testimony was not admissible. The objection was overruled, and the witness answered: "Fratt's building was constructed first. There is every evidence to prove it." He then went on to state the reasons why he knew it must be so. The witness was not asked his opinion, but whether he could tell which building was constructed first; and, in giving his answer, he stated the facts within his knowledge and observation, and not his opinion. The ruling was therefore proper, but, if otherwise, we fail to see that the plaintiff was in any way prejudiced by it.

The judgment and order appealed from should be affirmed.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Cal. 598)

ANDERSON v. PACIFIC BANK. (S. F. 270.)

(Supreme Court of California. May 13, 1896.) BANKS SPECIAL DEPOSITS-INTEREST.

1. Plaintiff, under an agreement with a bank, deposited with it $2,000, to secure the bank and the sureties it might procure, from liability as bail, and received a receipt reciting the deposit, and that it was payable on return of the certificate and release from liability on bail bond. The money, without the consent of plaintiff, went into the bank vaults through the regular channels. Held, that the deposit was special, and therefore, on the insolvency of the bank, plaintiff did not stand merely in the same position as the general creditors of the bank.

2. On refusal of the bank to return the money, the liability on the bail bond having terminated, plaintiff is entitled to interest from the date of the demand, and not from the date of the termination of liability as bail.

Department 2. Appeal from superior court, San Francisco county; J. C. B. Hebbard, Judge.

Action by Edward Anderson against the Pacific Bank. From a judgment for plaintiff, defendant appeals. Modified.

Sawyer & Burnett, for appellant. H. W. Hutton, for respondent.

HENSHAW, J. Appeal from the judgment given in favor of plaintiff under the following facts: Plaintiff and defendant entered into a contract whereby defendant agreed to furnish bail for Harry Christian and Martin Olsen, who had been held for trial before the superior court. To protect defendant, and the sureties it might furnish, from liability or loss, plaintiff agreed to deposit with defendant the sum of $2,000 in gold coin as a pledge. Plaintiff delivered the money to McDonald, the acting president of the bank, leaving it with him in the presi

following acknowledgment: "Edw. Anderson has deposited in this bank two thousand dollars ($2,000), in gold coin, payable 'to self or order, on return of the certificate properly indorsed. (Payable only on release of bonds.) (Not subject to check.) R. H. McDonald, Jr., Vice President. W. S. Morse, Teller." The money afterwards, but without the knowledge or consent of the plaintiff, went into the bank vaults, through the regular channels. The bonds were furnished, and neither defendant nor the sureties were subjected to any liability or loss thereunder. Subsequently, the defendants in the criminal charge were surrendered into custody by their bondsmen, and plaintiff thereafter, upon February 26, 1894, made demand upon defendant, which had meanwhile become insolvent, for a return of the money pledged. The bank refused a return, and this action was instituted.

Under this statement, which is taken from the findings, appellant contends that the facts disclose a general, and not a special, deposit with the bank, and that, upon the bank's insolvency, plaintiff stands in the same position as that occupied by the general creditors of the institution. .It is unquestionably true that one making a general deposit with a bank in the usual course of business parts with title to the moneys deposited. In the case of a special deposit, however, which is a mere bailment, the rule is the same with banking institutions as with individuals. Whether the special deposit be under a contract of bailment for the better protection of the bailor's property, or under a contract of pledge as security for some specific obligation of the pledgor, title does not pass to the bailee or pledgee, but remains in the pledgor. The pledgee acquires no right to make general use of the property. Civ. Code, §§ 1835, 2888. It would seem, therefore, that in this case the

question is completely disposed of by the finding of the court that the money was given and received as a pledge, and by the additional finding that it was afterwards carried into the bank's vaults through the regular channels without the knowledge or consent of the pledgor. But, indeed, all of the circumstances found substantiate the ultimate finding that the deposit was a special one, while none are inconsistent with it. Defendant demanded a delivery to it of $2,000, not for banking purposes, but to protect the bondsmen it might procure. There was reason why the plaintiff should make a special deposit of $2,000 with the bank as bailee, and none at all why he should make a commercial deposit of that sum. The money was delivered in a manner strictly in accord with the idea of a pledge, but quite inconsistent with the notion of an ordinary banking deposit. The so-called "certificate of de

posit" issued by the bank is not a certificate of deposit, but a mere receipt, expressing, though briefly, the contract of pledge. Every contract by which possession of personal property is transferred as security only is to be deemed a pledge. Civ. Code, § 2987. Under such a contract, the fact that the bank afterwards wrongfully commingled and used the funds, if it did do so, cannot be urged by it in defense as effecting any change in the contractual relations and rights of the parties. It would be but allowing it to plead its own wrongdoing to its own advantage. Henderson v. O'Conor, 106 Cal. 385, 39 Pac. 786; Massey v. Fisher, 62 Fed. 958; Bank v. Insurance Co., 104 U. S. 54.

There is nothing in the case of Association, v. Jacobs, 141 Ill. 261, 31 N. E. 414, upon which appellant relies, which can aid his contention here. The plaintiff in that case sued to recover the sum of $6,000 deposited by it with the banking house of Kean & Co., as indemnity on an appeal bond. But, as the court declares, the plaintiff gave its check to Kean & Co., which was cashed by that house; and the funds thus received with the knowledge of plaintiff were mingled and used with the general funds of the bank, and there was nothing in the certificate of purchase issued and received by plaintiff which indicated a special deposit. The court merely finds from a review of the evidence that it was not established that the deposit was special. In the case at bar the trial court finds a special deposit, and does not find a commingling and use of the money with plaintiff's knowledge. Indeed, it does not find any such commingling and use at all. It merely finds that after its reception, and without plaintiff's knowledge or consent, the moneys "went into the bank vaults through the regular channel." bank vaults are the usual and proper places for the reception and keeping of special deposits. The finding strictly means no more than that the money went into the bank vaults as a special deposit in the regular

manner.

The

The court allowed plaintiff, as damages, legal interest upon the money from the date upon which Christian and Olsen were surrendered by the sureties. But while plaintiff was entitled to a return of his money immediately after this event, defendant was not in default until its refusal, after demand, to make restoration of it. Not being in default, it should not be charged with interest as damages. This demand was actually made by plaintiff upon February 26, 1894, from which date plaintiff is entitled to interest as compensation. The judgment is ordered modified accordingly, each party to bear his respective costs upon this appeal.

We concur: MCFARLAND, J.; TEMPLE, J.

(112 Cal 30

CLUNIE v. SIEBE. (S. F. 498.) (Supreme Court of California. May 13, 1896.) TAXATION ASSESSMENT-MISKEPRESENTATIONS AS TO VALUE.

Pol. Code, § 3648, providing that any property willfully concealed, removed, transferred, or misrepresented by the owner, to evade taxation, on discovery, must be assessed at not exceeding 10 times its value, and seetion 3649, providing that any property discovered by the assessor to have escaped assess ment for the last preceding year, if owned by the same person who owned or controlled it for such preceding year, may be assessed at double its value, have no application where property in a preceding year has been assessed too low through misrepresentations of the owners.

Department 1. Petition by Andrew J. Clunie for a writ of mandamus to compel John D. Siebe, as assessor of the city and county of San Francisco, to assess the property of the Market Street Railway Company as required by Pol. Code, §§ 3648, 3649. Writ denied.

Andrew J. Clunie, in pro. per. Foshay Walker and Naphtaly, Friedenrich & Ackerman, for respondent.

HARRISON, J. The petitioner seeks by this proceeding to compel the respondent, who is the assessor of the city and county of San Francisco, to assess the property of the Market Street Railway Company as required by sections 3648 and 3649 of the Political Code, upon the ground that said property escaped assessment and taxation for the fiscal year commencing July 1, 1895, by reason of misrepresentations of the officers of said corporation as to the value of said property. It is alleged in the petition that the said corporation on the first Monday of March, 1895, was, and thence hitherto has been, the owner of certain real and personal property situated in the city and county of San Francisco, subject to taxation, and that said property has been during all of said time of the actual cash value of $17,500,000, and would have been taken in payment of a just debt due from said corporation for that sum of money; that between the first Mondays of March and July of the year 1895 said corporation, through its officers and agents, willfully and falsely represented to the respondent, while he was endeavoring to ascertain the full cash value of said property in order that he might assess the same for the purposes of taxation for said fiscal year, that the full cash value of said property did not exceed the sum of $3,883,866; that in fact said officers and agents of said corporation then knew that the said property was of the value of $17,500,000, and that said representations were made with the design and for the purpose of evading taxation upon said property for the fiscal year commencing July 1, 1895; that the respondent, as such assessor, assessed the property for that fiscal year