and transacted and carried on in such county; * to fix the rates of license tax upon the same, and to provide for the collection of the same by suit or otherwise." The power

to license is thus limited to lawful businesses "transacted and carried on" in the county, and it is urged that, when the supervisors imposed the license upon those engaged in a business, they exceeded their powers, for the words "transacted and carried on," it is contended, are not equivalent to or synonymous with the words "engaged in." In Ex parte Mirande, 73 Cal. 365, 14 Pac. 888, and County of El Dorado v. Meiss, 100 Cal. 268, 34 Pac. 716, the ordinances under consideration were identical in language with the one here in question, and the validity of these ordinances was upheld; but against this it is said that the precise point now presented was not called to the attention of this court. Even so, we fail to see either force or cogency in the argument. It is difficult to conceive of one being engaged in a business who does not transact and carry it on, and it is equally difficult to picture one transacting and carrying on a business who is not engaged in it. The finding of the court as to each defendant was substantially the same, and to the following effect: "That on the 27th day of April, 1895, and continuously thereafter until and including the 9th day of May, 1895, the defendant was engaged in the business of raising, grazing, herding, and pasturing sheep in the said county of Inyo,

* and did raise,

graze, and pasture said sheep on said lands within the said county upon the natural brush and vegetation growing therein." This finding is attacked as being unsupported by the evidence. By the evidence it was shown that the defendants pastured their sheep during the winter months in Kern, and perhaps other neighboring counties; that in the spring, feed being exhausted, they drove them into Inyo county from the south, and, following generally the line of the Sierra Mountains, continued the drive through Inyo county, a distance of about 140 miles, into Mono county, where they were pastured during the sudmer months. It consumed from 19 to 27 days to drive the sheep through Inyo county, during which time the animals ranged over land of the United States, and lived upon the natural herbage of the country. Over this there is no dispute. But upon the part of the defendants evidence was offered to show that the lands thus traversed were not grazing lands; that sheep men dislike exceedingly the necessity of driving their bands over such poor and waste country as that in Inyo county, but that the drives were made necessary to enable them to pass from their winter pastures to their summer feeding grounds in Mono county; and that it would be a benefit to sheep men and to their flocks if the latter could be lifted bodily from Kern county into Mono county, without the need of driving across so long and desolate a strip of territory. But upon the part of plaintiff there was evi

51 P.-3

dence that Inyo county was a part of the regular drive of the sheep men, and that the pasturage in the county was of exceeding value to the herds; that they came into Inyo county from the Mojave desert much weakened and reduced, and improved materially in condition as they passed through Inyo. It was further shown that the sheep are kept constantly moving in the mountain lands, picking up their sustenance as they go; that Inyo county is one of the regular counties looked to for food by the sheep men in the annual movements and migrations of their flocks, and that hundreds of thousands of acres of lands within the county are thus pastured by them. In County of El Dorado v. Meiss, 100 Cal. 268, 34 Pac. 716, it was held that an ordinance similar to this was not applicable to one who drove a band of sheep into the county, where they remained but for seven days, upon the owner's land, for purposes of shearing; but it was said: "Of course, the license tax cannot be evaded by the mere pretense of driving sheep through a county or into a county for an alleged temporary purpose, when it is evident that the real object in so doing, and what is really done, is to graze and pasture the sheep in the county." The question, then, being one of the purpose and intent with which the sheep are in the county, the determination of the real object must forever be a question of fact. In these cases the trial court found as a fact, under conflicting evidence, and against their contention, that these defendants were engaged in raising, grazing, herding, and pasturing their sheep in Inyo county. There is, of course, no question but that they were engaged in the business. The only question is whether they were engaged in that business in Inyo county, and the conclusion which the trial court reached on this question may not, under the evidence presented here, be disturbed. The judgments and orders appealed from are therefore affirmed.

PER CURIAM. In this cause the appeal was from the judgment alone. There was no appeal from an order. The opinions heretofore delivered in the cause (50 Pac. 689) correctly treated the appeal as an appeal from the judgment, and were intended to close with an affirmance of the judgment, but by a clerical mistake it was unintentionally adjudged that "the order appealed from is affirmed." The judgment of this court was accordingly entered, affirming the "order" appealed from, and the mistake was not discov

A municipal corporation may maintain an action to condemn land for a public street, under Code Civ. Proc. pt. 3, tit. 7, relating to condemnation proceedings in general, before it has resorted to the steps and processes contemplated by St. 1889, p. 70, relative to the laying out of streets of municipalities.

Department 2. Appeal from superior court, Los Angeles county; J. W. McKinley, Judge.

Action by the city of Los Angeles against one Leavis and others. From a judgment for plaintiff, and from an order denying a motion for new trial, defendants appeal. Affirmed.

Will. D. Gould, for appellants. W. E. Dunn, for respondent.

HENSHAW, J. The city of Los Angeles brought suit to condemn land for a public street. Judgment passed for plaintiff, and from this judgment, and from the order denying defendants' motion for a new trial, defendants appeal.

The city instituted its action under the provisions of part 3, tit. 7, of the Code of Civil Procedure. Before the commencement of the suit, it had not resorted to the steps and processes contemplated by the statute of March 6, 1889, relative to the laying out, opening, extending, widening, and straightening of public streets in municipalities. 1889, p. 70. The single proposition here advanced by appellants is that the city had no power or authority to commence or maintain this action without resort first had to the method provided in this statute. This contention, we think, is untenable.

St.

The provisions of the act of March 6, 1889, are not exclusive, and were not designed to prohibit a municipality from maintaining condemnation proceedings under the provisions of the Code of Civil Procedure. It may and will usually happen that a municipality proposing to open a new street will adopt the machinery provided for by the statute if for no other reason than that it contemplates the formation of an assessment district, and the imposition of the cost of the opening of the street upon the property of that district.

But, up

on the other hand, if it shall happen that a municipality has in its treasury funds available for the proposed condemnation and opening of a street, no good reason can be seen why it should not pay these expenses

It

out of its treasury, and relieve property owners of the unnecessary burden of taxation. In City of Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604, the court, after quoting section 1001 of the Civil Code, wherein it is provided that any person may, without further legislative action, acquire private property for any use specified in section 1238 of the Code of Civil Procedure, declared: "A corporation, whether private or public, is a person. follows, therefore, that under this general law, general in the widest and fullest sense of the term, any public or private corporation, or any natural person, may, for any of the uses defined in section 1238 of the Code of Civil Procedure, acquire property, without the consent of the owner, by means of the proceedings described in part 3, tit. 7, of said Code." In City of Santa Cruz v. Enright, 95 Cal. 105, 30 Pac. 197, the same construction is given to the law. The judgment and orders appealed from are therefore affirmed.

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

(119 Cal. 104) (L. A. 250.)

CARTER v. TILGHMAN. (Supreme Court of California. Nov. 24, 1897.) WARRANTS OF IRRIGATION DISTRICTS-WHEN PAYABLE OUT OF PARTICULAR FUND.

1. An irrigation district issued warrants which recited that the treasurer "will pay to" a person named a certain sum for labor accrued, "and charge to the expense fund." Below the signatures it was stated that "this indebtedness is payable only when there are funds in the hands of the treasurer applicable therefor." Held, that there was no agreement that the holder would look to the "Expense Fund" for payment of the warrant.

2. Under the Wright irrigation act, $4,000 was raised by a special tax in an irrigation district. The tax was directly authorized by the electors, and was raised for "the payment of salaries of officers and agents of the district, repairs, maintenance, and protection of the ditches, and other property and rights of the district." The directors apportioned $1,000 of such $4,000 to the "Expense Fund," $1,000 to the "Litigation Fund," and $2,000 to the "Engineers' Fund." Held, that the amount raised by the tax was a common fund to meet all indebtedness, and an apportionment to the "litigation" and "engineers' funds would not prevent its application to labor warrants.

Department 1. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

Action by J. H. Carter against L. R. Tilghman. From a judgment for plaintiff, defendant appeals. Affirmed.

Mulford & Pollard, for appellant. Edwin A. Meserve, for respondent.

GAROUTTE, J. This is an appeal from a judgment of mandate which ordered the treasurer of Big Rock Creek irrigation district to pay certain warrants issued by the district, from the funds then in the treasurer's hands. Under authority found in certain

provisions of the Wright irrigation act, $4,000 was raised by a special tax upon the property of Big Rock Creek irrigation district. This tax was directly authorized by the qualified electors of the district, and was raised for the purpose of "the payment of salaries of officers and agents of the district, repairs, maintenance, and protection of the ditches and other property and rights of the district." Subsequently the board of directors met and apportioned this $4,000 to certain specific funds, to wit, $1,000 to the "Expense Fund," $1,000 to the "Litigation Fund," and $2,000 to a fund then and there created, to be known as the "Engineers' Fund." The various warrants of the district here involved, in all substantial parts, may be said to be in the following form: "Treasurer Big Rock Creek irrigation district will pay to George S. Martin the sum of thirteen dollars for labor accrued November 1, A. D. 1893, and charge to expense fund. Attest: James McCoy, President. L. C. Tilghman, Secretary. This indebtedness is payable only when there are funds in the hands of the treasurer applicable therefor." Some of these warrants were issued prior to the voting of the aforesaid tax.

There were no funds in the hands of the defendant treasurer to the credit of the expense fund at the time these proceedings were inaugurated, and for that reason appellant insists that he, as treasurer of the district, could not pay the warrants, and therefore the action must fail. It is also insisted that the warrants were made payable out of a particular fund; that the holders thereof, by accepting the warrants, agreed to look to that fund alone for payment, and, the fund being exhausted, they had no remedy. If it be conceded that the legal consequences contended for by appellant follow from the existence of the facts above stated, still petitioner's cause of action is not defeated, for the facts are not as claimed by him. There is no agreement upon the part of the holder of the warrant that he will look to the expense fund for the payment of the warrant. The fact that the amount paid upon the warrant is to be charged up to the expense fund in no way indicates it. Such action would be a mere matter of bookkeeping. Upon the contrary, the warrant expressly states upon its face that any funds in the hands of the treasurer applicable to its payment may be called upon to satisfy it.

The question then presents itself: Are there any funds in the hands of the treasurer which may be applied to the payment of these warrants? There is money in the hands of the treasurer set aside from the proceeds of the aforesaid tax in the engineers' fund and in the litigation fund. May these moneys be applied to the payment of the warrants forming the basis of this litigation? We are entirely satisfied that such an application may be made of them. As against the holder of warrants, the board of direct

ors had no power to indulge in a game of hide and seek with the funds of the district; and certainly not with the funds raised by a vote of the people for certain particular purposes. As a matter of bookkeeping, the board may keep as many accounts or funds as deemed necessary or convenient; but such a system of bookkeeping in no way affects the rights of creditors. If legal justification exists for the application of this $4,000 as it was applied, then the entire amount may have been applied and set apart to the engineers' fund, or some other fund upon which there was no demand whatever, and possibly never would be, and thus the very purposes for which the money was voted by the people be entirely defeated. This tax was voted by the electors of the district for certain specific purposes. When collected, it was a fund of itself applicable to the payment of indebtedness incurred for those purposes, and the board of directors had no power to divert it into other channels. Neither could it divert it to the payment of certain kinds of indebtedness within legitimate channels, as against other indebtedness standing upon the same plane and equally within the purposes for which the tax was raised. The board must be entirely impartial in the application of the money raised by this tax, and, as warrants are presented for indebtedness incurred for any of the purposes authorized by the act and specified in the call for the election, those warrants should be paid while moneys are on hand, regardless of the status of any particular fund to which these moneys may have been set aside by the board of directors. The entire amount raised by the tax is a common fund to meet all such indebtedness. The fact that some of these warrants had been issued prior to the time when this particular money was raised by the tax we deem immaterial. We find no reason in the law why any distinction should be made in this regard. For the foregoing reasons, the judgment is affirmed.

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

(119 Cal. 172)

WOLTERS v. KING et al. (S. F. 637.) (Supreme Court of California. Dec. 4, 1897.) CONTRACT-TIME OF PERFORMANCE-PAROL EVIDENCE.

Where a contract for the sale of land provides for a commission for effecting the sale, but does not fix the time when the said commission shall be paid, a contemporaneous oral agreement, made by the agent of the parties to the written contract, fixing the time of payment, may be shown, and it will bind the parties to the written contract, where they have received the benefits thereof; and Civ. Code, § 1657, which provides, "if no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly * it must be performed immediately upon the thing to be done being exactly ascertained,"-would not, therefore, in that case, apply.

本

*

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; James M. Seawell, Judge. Action by George Wolters against Frederick R. King, Hugh B. Jones, H. G. Jones, and H. Harris, co-partners under the firm name of Harris & Jones. From a judgment for plaintiff, and order denying motion for new trial, defendants appeal. Affirmed.

Chickering, Thomas & Gregory, for appellants. George A. Rankin, for respondent.

BELCHER, C. The plaintiff brought this action to recover a sum of money, with interest, alleged to be due for lumber sold and delivered by him to defendants. The answer denied all the averments of the complaint. The court found: "That on the 8th day of November, 1892, the plaintiff, at the instance and request of the defendants, sold and delivered to said defendants lumber of the agreed price and value of $1,018.23, for which said defendants promised and agreed to pay to said plaintiff, ninety days after said date, with interest at the rate of eight per cent. per annum from and after the expiration of said ninety days." The court further found that no part of the said money had been paid, and that plaintiff was entitled to a judgment therefor. Judgment was accordingly so entered, from which, and from an order denying their motion for a new trial, defendants appeal.

It appears that in November, 1892, plaintiff was the owner of 512 acres of timber land in Siskiyou county, which he wished to sell. The defendants were co-partners, engaged in the business of buying and selling lumber in the city of San Francisco. The Red Cross Lumber Company was a corporation engaged in the business of manufacturing lumber near plaintiff's land, and it wished to purchase said land and pay for it in lumber. On November 1, 1892, the defendant H. Harris, in his own name, but for the benefit of the firm of Harris & Jones, entered into a written agreement with the Red Cross Lumber Company, by the terms of which he agreed to sell to the lumber company, and said company agreed to buy, the plaintiff's said land. The agreed purchase price was $5,120, payable in lumber to be shipped and delivered to Harris by or before the 31st day of December, 1893. The lumber was to be taken in payment according to a schedule fixing different values for different grades of lumber. Upon delivery by the lumber company of sufficient lumber to make up the purchase price of $5,120, Harris agreed to execute and deliver to said company a good and sufficient grant, bargain, and sale deed of said land. On the same day, November 1, 1892, the plaintiff, Wolters, and the defendant Harris, entered into a second written agreement, which, after setting out the substance of the agreement between Harris and the lumber company, and that the title to the lands described there

in was actually vested in said Wolters, and that Harris in contracting for the sale thereof acted as Wolters' agent, contained the following provisions: (1) That Harris should receive the lumber shipped to him by the Red Cross Lumber Company, and pay Wolters for it at the rates mentioned in the agreement between him and the said company. (2) That Wolters should pay Harris the sum of $1,024 as a commission for making the sale of the land. (3) That Wolters would sell to Harris all the lumber mentioned or referred to in the agreements at the rates specified therein, and that payment for any shipment made should not be due until the expiration of 90 days after the delivery thereof to Harris, in San Francisco, and that upon all payments not made at the expiration of 90 days Harris should pay interest at the rate of 8 per cent. per annum. (4) That Harris' commission should be paid in lumber shipped to him by the said lumber company, and to be computed at the rates fixed in the first agreement.

Pursuant to the said agreement, three car loads of lumber, of the value of $1,018.23 (computed at the rates specified), were during the month of November, 1892, shipped by the Red Cross Lumber Company to San Francisco, and were delivered to and accepted by the firm of Harris & Jones; and it was to recover the purchase price of these shipments of lumber that this action was brought. It will be observed that the two agreements were made at the same time, and were parts of one transaction; and that they were made for the benefit of and are binding on the defendants is not questioned. Counsel say: "So far, however, as the obligations arising under this written agreement are concerned, it is admitted by appellants that they are bound thereby, not because it was in its inception their contract, but because they ratified it and adopted it as their own. They are now and have at all times been willing to stand by the obligations arising out of that instrument." But the contention is that the defendants were entitled to appropriate the first lumber received by them to the payment of the commission, and hence the plaintiff cannot maintain this action; and in support of this contention counsel cite section 1657 of the Civil Code, which provides: "If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly-as, for example, if it consists in the payment of money only-it must be performed immediately upon the thing to be done being exactly ascertained." It is true the general rule is that a broker, who undertakes to sell another's land at a fixed price and within a given time, for a stipulated commission, has earned and is entitled to his commission when he has found a purchaser who is able, ready, and willing to take the land at the price and within the time named. But it was clearly proved at the trial of this case that, contemporaneously with

the execution of the written agreements, it was orally agreed between Harris and Wolters that the commission was not to be taken out of the first lumber received by Harris, but he was to wait for the payment of his commission until all the lumber had been shipped, the contract completed, and Wolters had received payment for his land. This testimony was all objected to by defendants, but, as no time was definitely fixed in the written agreements for the payment of the commission, it was properly held admissible and received. Sivers v. Sivers, 97 Cal. 518, 32 Pac. 571.

It is earnestly insisted, however, that the defendants, other than Harris, were not bound by the oral agreement, and that the court erred in rendering judgment against them. Without following the able and quite elaborate arguments of the respective counsel upon this point, we deem it enough to say that, looking at all the facts and circumstances attending the transaction as shown by the record, it must, in our opinion, be held that all the defendants were bound by the oral agreement, and were therefore not entitled to appropriate the lumber involved in this case to the payment of the said commission. It follows that the judgment and order appealed from should be affirmed.

PER CURIAM. This appellant complains that his motion in arrest of judgment should have been granted. The contention is based upon an alleged defect in the information, wherein it fails to allege that the acts done by appellant which constitute the burglary were done "contrary to the force and effect of the statute in such cases made and provided." Pen. Code, § 951. No demurrer was interposed to the information, and, under those circumstances, no defect appearing upon the face of the information can be considered unless it bears upon the matter of jurisdiction. Rehearing denied.

BELCHER, C. On June 1, 1887, the defendant M. L. Wicks executed to Mary Connolly and Patrick Connolly his promissory note for $20,000, bearing interest at the rate of 10 per cent, per annum, and to become due June 18, 1888; and to secure payment of the note he, on the same day, executed to them a mortgage on 280 acres of land, which contained the following clause: "It is agreed that any forty acres of this land will be released from this mortgage on payment of the sum of four thousand dollars for each and every forty acres so released." On September 7, 1887, Mary Connolly assigned all her interest in the said note and mortgage to Patrick Connolly. On June 22, 1889, Patrick Connolly assigned all his interest therein to John D. Bicknell, the assignment being absolute in form, but intended only as collateral security for an indebtedness of the assignor. On June 15, 1891, Bicknell reassigned the note and mortgage to Patrick Connolly, and on March 7, 1892, the latter assigned the same to Eliza Connolly, the plaintiff. Shortly after the said mortgage was executed, Wicks conveyed all the land covered by it to one R. F. Lotspeich, as trustee, for the purpose of making sales thereof in subdivisions. Lotspeich, as such trustee, conveyed to various persons parcels of the land in tracts of 10 and 5 acres each, and 11 of such tracts were released from the mortgage. On May 31, 1888, Lotspeich sold and conveyed to defendant Robertson 20 acres of the said land for the sum of $4,000, which Robertson then and there paid to Wicks, who, under the terms of the said trust deed, was to receive all moneys paid for any of the land held by Lotspeich as trustee; but it does not appear that this money, or any part of it, was paid over to the mortgagee, or indorsed upon the said note, and this 20-acre tract was not released from the mortgage. On March 29, 1892, plaintiff commenced this action to foreclose the said mortgage upon all the land not released therefrom, making 8