The defendant was, therefore, not precluded from defending the action in any particular upon which it relied. After a cause has been tried upon its merits. a ruling of the court either in striking out, or in refusing to strike out, a portion of a pleading, will not justify a reversal of the judgment, if it appears that the party against whom the ruling was made has not been prejudiced thereby, and has been able to present to the court his entire cause of action or defense. Mere technical error, unaccompanied by injury, will be disregarded. Code Civ. Proc. § 475.

The court did not err in its instructions to the jury respecting the measure of care which a railroad company must exercise towards its passengers. Rorer, R. R. p. 951; Railroad Co. v. Homer, 73 Ga. 251. The passenger is not required to question the action of the conductor in taking up his ticket, but has to assume that his conduct in taking or withholding the ticket is in accordance with the rules of the company. It is therefore incumbent upon the conductor to exercise more than ordinary care in seeing that, after he has taken the ticket from the passenger, the latter shall be provided with the means of continuing his journey. It is not error to hold that this requires extreme care and diligence. We are of the opinion, however, that the damages allowed by the jury were excessive, and not justified by the evidence. They were properly told that they could not award the plaintiff exemplary damages, but only such as would be a full and fair compensation to her for the injury and detriment she had suffered as the proximate results of the defendant's wrongful acts. The testimony tending to show that the conductor was rude and insulting in directing her to leave the train at East Riverside is quite meager, and consists more of her statement of its character than of the language used by him. The jury were instructed that, in estimating the amount of damages she could recover by reason of the humiliation in being excluded from the car, they were not at liberty to consider her peculiar nervous temperament, but to allow only such damages as would have resulted to a person of ordinary or usual temperament. So, too, the evidence concerning the effect of this expulsion from the car upon her nervous condition consists more of general statements than of details, and it does not appear that this effect was of more than brief duration. She does not claim to have sustained any direct physical injury by reason of the walk to Colton. She testifies, as do also her husband and Dr. Averill, that, except for her nervous condition, she was in fair health, and that she was abundantlý able to take a walk of two or three miles; and it is not suggested that the walk had any effect upon her nervous condition, or that she suffered any direct inconvenience therefrom after her return to San Diego. The walk itself was not attended with any un

usual inconvenience. It was upon the railroad track, in a level country, on an afternoon in April. The distance is not given, but, after going about a mile, or as far as the railroad bridge, she was taken into a passing vehicle, and carried to Colton. While the amount of damages that may be awarded in a case like the present is in the discretion of the jury, it must be a reasonable and not an unlimited, discretion, and must be exercised intelligently and in harmony with the testimony before them. We think that the jury in the present case must have been influenced by other considerations than the testimony before them in arriving at the amount of their verdict.

The judgment and order denying a new trial are reversed, unless the plaintiffs shall, within 30 days after the filing of the remittitur in the superior court, file with the clerk and give to the defendant a stipulation remitting from the judgment the sum of $1,000. If such stipulation be so filed and delivered, the superior court is directed to amend the judgment in conformity therewith, and thereupon the judgment and order shall stand affirmed.

MECHANICS' LIENS-ELEVATOR PART OF BUILDING -SUBCONTRACTOR'S LIEN-COMPLAINT

OBJECTIONS TO, ON APPEAL.

1. Where the original plans for a large building provided for an elevator, and the contract for the construction of the elevator was let when contracts for other work were let, the elevator was a substantial part of the building, and the building not completed, so that limitations for filing mechanics' liens would run, until it was finished.

2. The objection that the complaint insufficiently alleges some of the necessary requisites of the claim of lier cannot be urged for the first time on appeal, where the claim of lien was not on the trial objected to as being insufficient in these respects.

3. Under Code Civ. Proc. § 1184, which authorizes a subcontractor, where the original construction contract is void, to enforce his lien directly against the owner on an implied contract, without reference to the construction contract, a subcontractor can enforce his lien under contract with the owner, where both the construction contract and his own contract with the original contractor, on which his claim of lien was based, were void.

4. The fact that a subcontractor is entitled, where his contract with the original contractor is void, to enforce his claim of lien against the owner, does not render him, as to the owner, an original contractor.

Department 1. Appeal from superior court, Alameda county; F. W. Henshaw, Judge.

Three separate actions by Thomas Coss and two others, respectively, against Joseph McDonough, to foreclose mechanics' liens, consolidated. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Freeman & Bates, for appellants. Geo. C. Sargent, J. H. Lucas, and Wickliffe Matthews, for respondents.

GAROUTTE, J. This appeal involves the correctness of a judgment in three consolidated actions for the foreclosure of liens against the property of the defendant McDonough for materials furnished and labor performed in the construction of a building upon certain property of his, situate in the city of Oakland, and described in the complaints. Defendant appeals from the judgment.

It is first insisted that some of the claims of lien were prematurely filed, and that others were filed too late. The court found as a fact that the building was completed April 10, 1893, and, if that finding has support in the evidence, then all the claims of lien were filed within 30 days thereafter. The building to be erected was of large size, costing a quarter of a million dollars, and different contracts were let by the owner for the construction of various portions of it, and among these contracts let was one for the construction of an elevator. The trial court held that the elevator was an essential and necessary part of the building, and held that the completion of the building dated from the completion of the elevator, the work upon this elevator being the last work done. While there may have been a little work done on the elevator upon the 11th and 12th days of April, it must of necessity have been of trifling character, and the finding of the court as to the date of completion will not be disturbed for that reason. For, as said in Mills Co. v. Kremer, 94 Cal. 208, 29 Pac. 633: "Whether the items of work which were done after the date at which the appellant claimed the building was completed were a 'trivial imperfection' was also a matter of fact to be determined by the court." Again, we have no doubt of the soundness of the trial court's views in holding that the elevator was a substantial and necessary part of the building, and until the elevator was constructed and placed in position it could not be said that the building was completed. An elevator was called for by the original plans and specifications. A contract was let for its construction at the same time that other contracts were let. It was attached to the building, and formed an integral part thereof. The fact that the building might have been used without it, and that it was a convenience merely, is immaterial. That is not the question. Conceding an elevator in this character of building to be a mere convenience,-which would seem not to be the fact, still conveniences are a material part of the building, when provided for by the plans and specifications; and, when so provided for, the building is not completed until the demands of the plans and specifications in this regard have been satisfied.

Appellant now makes objection to the sufficiency of the complaint, and the allegations of the claim of lien of respondent Coss as to the description of the land to be charged with the lien. But appellant offered no demurrer to the complaint at any time; neither did he object to the sufficiency of the claim of lien in this regard when offered in evidence at the trial in the lower court. And upon an examination of both the claim of lien and the complaint based thereon we find nothing of sufficient importance omitted therefrom to authorize this court in the first instance to interfere. The objections are too technical to be raised in this court for the first time. As a fair illustration, it is claimed that the complaint should have stated that the claim of lien contained a "description of the property sufficient for identification." As a matter of fact, the claim of lien contained a description of the real property, and the complaint so alleged the fact. Nothing more is demanded by the statute.

At the trial appellant moved for a nonsuit against the respondent Grubb, because his claim of lien did not state the terms, time given, and conditions of his contract, and because there was no money due by the terms of his contract; and the motion was granted as to the first count of his complaint. His complaint was alleged in two counts: First, that he was a subcontractor of one Andrews; and, second, that he furnished the materials and performed the labor at the personal instance and request of appellant McDonough. His recovery of a judgment is based upon the second count, the court having held the contract between McDonough and Andrews to be void. It is now contended that a fatal variance exists between the claim of lien and the count in the complaint upon which recovery was had. It is insisted the claim of lien having set up a contract between respondent Grubb and the original contractor, Andrews, no recovery could be had upon a complaint setting out a contract with defendant McDonough, the owner. We think this contention unsound. That a complaint against the owner of the building may be brought under section 1184 of the Code of Civil Procedure upon a claim of lien setting up a contract with an alleged original contractor, is expressly held in Lumber Co. v. Gottschalk, 81 Cal. 646, 22 Pac. 860, and the principle is also fully supported in Yancy v. Morton, 94 Cal. 558, 29 Pac. 1111. We do not think there is anything in the point that respondent Grubb was an original contractor. It is held to the contrary in Davis v. McDonough, 42 Pac. 450. Neither was the verification of the claim of lien premature. For the foregoing reasons the judgment is affirmed.

J.

We concur: HARRISON, J.; VAN FLEET,

(Supreme Court of California. March 21, 1896.) VOLUNTARY INSOLVENCY-STATUTE-PETITION UNDER FOR DISCHARGE.

Under Insolvent Act 1880 (Append. Code Civ. Proc.) § 2, which provides that one owing over $300 may file a petition for discharge from his debts in a county where he has resided the six months preceding the filing, and provides that, in the petition, the petitioner shall ̧"set forth his place of residence,' a petition need not allege that the petitioner resided in the county where the petition was filed the six months preceding the filing thereof.

Department 1. Appeal from superior court, Alameda county; A. L. Frick, Judge.

Petition by Richard P. Thomas to be declared an insolvent under act for relief of insolvent debtors. From an order adjudging the petitioner an insolvent, one of his creditors appeals. Affirmed.

Stateler, Pierson & Mitchell and R. A. Friedrich, for appellant. Thos. C. Kierulff, for respondent insolvent. A. W. Thompson. for respondent assignee.

PER CURIAM. This is an appeal by a creditor from an order adjudicating one Thomas an insolvent debtor. It is insisted that the court had no jurisdiction to make the order of adjudication, by reason of a want of sufficient averment of facts in the petition of the insolvent. Insolvent Act, § 2 (Append. Code Civ. Proc.), provides: "An insolvent debtor, owing debts exceeding in amount the sum of three hundred dollars, may apply by petition to the superior court of the county or city and county in which he has resided for six months next preceding the filing of his petition to be discharged from his debts and liabilities." It is now claimed that the petition only showed that the insolvent had resided in the county for six months next preceding his signing and verifying the petition. The latter portion of section 2 sets forth the particular matters which must be alleged by the petition of the insolvent, and that provision says he must "set forth his place of residence." There is no requirement that he must state in his petition that he has resided in the county where the petition is filed six months next preceding the filing thereof, and we hold that an averment to that effect is not required. Subsequently to the adjudication, if creditors desire to contest that question of fact, the road is plain to them. A statement in the petition to that effect would not be conclusive upon the creditors, for they could attack its truth at a subsequent stage of the proceedings; and it is the fact of an immediate preceding residence of six months in the county where the petition is filed, and not the allegation to that effect, that is jurisdictional. We see no substantial merit in this appeal. For the foregoing reasons, the order appealed from is affirmed.

a Rehearing denied.

1. The statement of the declarant that at the time of filing her declaration of homestead she actually occupied the premises, with the intention to reside thereon, was not conclusive, where other facts to which she testified were inconsistent with such intention.

2. A finding of the trial court on conflicting evidence is conclusive on appeal.

Department 1. Appeal from superior court, Alameda county; W. E. Greene, Judge.

Action by Joseph Tromans against Henry Mahlman and wife for possession of a house and lot claimed by defendants as a homestead. From an order denying a new trial, plaintiff appeals. Affirmed.

For facts, see report on former trial. 27 Pac. 1094.

R. Percy Wright, for appellant. Metcalf & Metcalf, for respondents.

HARRISON, J. The facts in this case are set forth in the opinion given upon a former appeal. 92 Cal. 1,27 Pac. 1094, and 28 Pac. 579. It was then held that the evidence was insufficient to show an actual residence upon the premises at the time of filing the declaration of homestead, and, consequently, that the premises were not impressed with the attributes of a homestead; and the case was remanded for a new trial. Upon that trial, from which the present appeal is taken, the evidence before the court was substantially the same as upon the former trial, and the decision of the court thereon in favor of the plaintiff was, by necessary implication, a decision that the evidence did not show such actual residence on the premises; and, under the decision of this court upon the former appeal, the superior court was fully justified in making this finding. The only respect in which it is claimed by the appellant that the evidence herein differed from that at the former trial to such an extent as to authorize a different conclusion is that Mrs. Mahlman testified that at the time she went to the premises, on the 21st of August, 1883, it was her intention to remain there and occupy the house continuously, but that, by reason of supervening circumstances she was compelled to return to San Francisco the next day after the declaration of homestead was filed. Whether she did in fact reside on the premises at the time the declaration was filed was a question of fact, to be determined by the court from the evidence before it. The physical fact of actual occupancy, as well as the Intention with which she occupied the house, were both elements to be considered in determining actual residence; and the court was not bound to accept her statement that she intended to reside thereon as conclusive, if other facts to which she testified were inconsistent with such intention. Whatever incon

sistency there was between these facts and her statement of her intention presented merely a conflict of evidence, on which the decision of the trial court was final. Its decision, upon this conflict of evidence, that she did not reside there, is conclusive upon this court. The order is affirmed.

the transcript. The purchase price was paid and the sale was reported to and confirmed by the court. Susskind immediately took possession of the property purchased, obtained a new lease of the store, and thereupon commenced and thereafter continued the business of selling such goods and of buy ing and selling other goods of a similar

ATTACHMENT-MINGLING OF GOODS-ILLEGAL SEIZURE-NOTICE BY CLAIMANT.

1. The fact that goods of an attachment defendant are in the possession of a third person, who has mingled them with his own goods, and refuses to point them out, but claims ownership of all, does not warrant the seizure of goods, his title to which is unquestioned, and which are readily distinguishable from those of the attachment defendant.

2. A notice to an officer of a claim of ownership of attached property is not vitiated by the statement therein that the claimant is the owner of all the property "except a portion owned by" another, who is not a party to the action.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; J. W. McKinley, Judge.

Action by Henry Susskind against J. C. Cline as sheriff, A. I. Hall, assignee, intervener. Judgment for the intervener, and plaintiff appeals. Reversed.

Wells & Lee and Calvin Edgerton, for appellant. Graff & Latham, for respondents.

BELCHER, C. In 1892, Mrs. L. M. Wagner was engaged in the jewelry business in the city of Los Angeles, the business being chiefly managed by her husband, J. B. Wagner. Her store was at No. 125 South Spring street, and in it she had been accustomed to keep a large stock of goods, consisting, among other things, of diamonds, watches, and jewelry. On September 28, 1892, she filed in the superior court of Los Angeles county her voluntary petition in insolvency, and was thereupon adjudged to be an insolvent debtor. Thereafter A. I. Hall was duly elected and qualified as assignee of the estate of the insolvent, and on November 2, 1892, the clerk of the court, by an instrument in writing, assigned and conveyed to him all the estate, real and personal, of the debtor. The assignee at once took possession of all the goods and property in said store, and held possession thereof till November 16, 1892, when, under an order of the court, he sold the same at public auction to Henry Susskind, the plaintiff herein, he being the highest and best bidder, for the sum of $7,100. The property sold consisted of a great variety of articles, including the fixtures and a safe, of which a list or inventory is presented, covering about 33 pages of

named day all the goods and property then in the store were seized and taken possession of by J. C. Cline, the sheriff of Los Angeles county, as the property of L. M. Wagner, the insolvent, under a writ of attachment issued in an action commenced by M. Wunsch et al. against her in the superior court of that county. Susskind on the same day notified the sheriff that the property taken was his, and demanded a return thereof, but his demand was refused. He thereupon commenced this action to recover the possession of said property or the value thereof, alleged to be $20,000, and damages.

The property sought to be recovered is described in the complaint as "a stock of jewelry consisting generally of various articles of gold and silver and plated jewelry, watches, chains, ornaments, also a lot of silverware and plated silverware, lot of fixtures, one safe, lot of diamonds and other precious gems, lot of money, lot of jeweler's tools and implements, shelving, counters, clocks, all situate and contained in that certain store and premises in the city of Los Angeles known and designated by city number 125 South Spring street." The sheriff answered, denying, for want of information or belief upon the subject sufficient to enable him to answer the allegations of the complaint, that on the 26th day of July, 1893, or at any other time, plaintiff was the owner, or in possession, or entitled to the possession of the goods and chattels described in his complaint, or that he, the defendant, wrongfully took the said goods and chattels from the possession of the plaintiff, or unlawfully withheld the same from the plaintiff; and alleging that he took the said property under and by virtue of a writ of attachment, as herein before stated. On the same day this answer was filed, A. I. Hall, the assignee of the insolvent's estate, asked and was permitted to intervene in the action. In his complaint in intervention he set up the facts of the insolvency of Mrs. Wagner, her voluntary petition in insolvency, his election and qualification as assignee, the assignment of the estate to him by the clerk of the court, and his taking possession, as such assignee, of all the property of the estate that he was then able to find, his settlement of the estate, and final discharge, as such assignee, on May 24, 1893, and the vacation and setting aside of that discharge by an order of the court on September 1, 1893. He then alleged: "That the said Henry Susskind, before the said discharge of said intervener as such assignee, conspired

with said insolvent and J. B. Wagner, her husband, to secrete and conceal a portion of said insolvent's estate, consisting of diamonds, watches, and jewelry, to prevent the same from coming into the possession of said intervener as such assignee, a particular description of which property so concealed is unknown to said intervener, but is known to the plaintiff, Henry Susskind; and said insolvent did secrete and conceal said property; and Henry Susskind afterwards received and took possession of said concealed property, knowing that it was a part of said insolvent's estate at the time of filing her petition in insolvency, and that the same had not been delivered by said insolvent to her said assignee. That the said intervener did not know that said property, or any part thereof, had been concealed, or that said defendant had taken possession thereof, or had disposed of any part thereof, until after the discharge of the intervener as assignee of said insolvent's estate. That the property was taken by the sheriff under a writ of attachment, as before stated, and was still held by him, a schedule of the property taken being appended. That the said stock so taken by virtue of said writ was a part of the estate of said insolvent debtor concealed and withheld by her from said assignee. That said Henry Susskind, for the purpose of defrauding said estate, is wrongfully claiming to be the owner of and entitled to the possession of said property so taken and held by said J. C. Cline as sheriff, but said Henry Susskind has no right, title, or interest therein." And the prayer was that the intervener, as assignee of the insolvent's estate, have judgment for the possession of said property. The plaintiff answered the complaint in intervention, denying all of its material averments.

The case was tried without a jury, and, among other things, the court found: "That prior to the filing of said insolvent's petition in insolvency a portion of said insolvent's estate, consisting of diamonds, watches, and jewelry, was secreted so as to prevent the same from coming into the possession of said intervener as such assignee, and to prevent the same from being distributed among said insolvent's creditors by such intervener as such assignee. That the plaintiff, after the secreting and concealing of said goods, and knowing that said goods had been secreted and concealed, and for the purpose of preventing the same from coming into the possession of said assignee, received and took possession of said concealed property, and, after selling a portion thereof, retained possession of the remainder thereof" until July 26, 1893, "when the said property was taken by the defendant as the sheriff of said county, by virtue of said writ of attachment, at which time they were so mixed and confused by said plaintiff with other goods that they were not distinguishable from them; and plaintiff neglected and refused to point out

and distinguish in said stock taken by said sheriff by virtue of said writ of attachment the goods owned by him prior to said confusion and mixing therewith of said diamonds, watches, and jewelry concealed and secreted by said insolvent, and also failed and neglected and refused to point out and distinguish the said watches, diamonds, and jewelry so secreted and concealed by said insolvent, and mixed and confused by him with said other goods. That plaintiff, in taking and retaining possession of said stock of diamonds, watches, and jewelry, was acting with said insolvent in the secreting, concealing, and withholding said diamonds, watches, and jewelry, for the purpose of defrauding said estate, and preventing the said property from coming into the hands of said intervener, and from being distributed among the creditors of said insolvent. That plaintiff was not, at the time of the taking by the defendant of said diamonds, watches, jewelry, and fixtures, the owner of, or entitled to the possession of, the property described in his complaint or in his notice, and is not now the owner thereof, or entitled to the possession thereof." It was ordered "that judgment be entered herein in favor of the intervener for the possession of the property described in plaintiff's complaint, and in favor of defendant against plaintiff for his costs." ment was accordingly so entered, from which, and from an order denying his motion for a new trial, plaintiff appeals.

Judg

The findings above quoted are assailed by the appellant as not justified by the evidence, and numerous rulings of the court upon the admission of evidence are specified, and urged as errors in law which call for a reversal. The statement on motion for new trial, as found in the transcript, consists of about 400 printed pages. To state the evidence intelligibly, and to review the rulings complained of, would require a very extended opinion, and, in view of the conclusion reached upon another point, we have deemed it unnecessary to attempt to do so. It is undoubtedly well-settled law that if two owners of goods or chattels of a similar character mix and intermingle them together in such a manner that they are not distinguishable, and if, under a writ of attachment or execution against one of the owners, all of the goods or chattels so mingled are taken by the sheriff as his property, the burden is upon the other owner to point out and designate to the sheriff the particular goods or chattels which are his, and until he does so he cannot maintain an action against the officer to recover the portion which he claims. Wellington v. Sedgwick, 12 Cal. 469; Wade, Attachm. § 134. But this rule does not apply if the goods or chattels are plainly and easily distinguishable. Queen v. Wernwag, 97 N. C. 383, 2 S. E. 657. For example: If A. had a band of sheep, and also horses or mules in the same pasture, and if with his consent B. had been permitted to mix and intermingle