vided that the injunction should not continue unless the undertaking was given. The sureties contended that they could stand upon the letter of their contract, and as the bond did not recite such consideration, but, as they contended, a different and a void consideration, to wit, the previous issuance of the injunction, it was void. The court there, as distinctly as in Carter v. Mulrein, recognized the fact that, if the undertaking was given in consideration of the previous issuance of the writ, it was void, but agreed that under the circumstances they were authorized to hold that the undertaking was given in consideration of the continuance of the injunction. In that case the order required the undertaking, as a condition to the continuance of the restraint, and it was given in order to obtain such continuance. The recital of the consideration was not within the rule that a surety may stand upon the letter of his bond. The rule only has reference to the extent and measure of the liability of the surety. He cannot be held to have contracted to do more than he said he would do. Proof of a consideration for such a contract can be made as in other cases. Here the giving of a bond was not made to affect the continuance of a restraint. Therefore the continuance of the restraint could not have been a consideration for the bond, even though it had been so recited in the bond. If these views are correct, the other points made become immaterial. The judgment and order are reversed.

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

BEATTY, C. J. I concur in the reversal of the judgment. The only possible consideration for the undertaking of the defendants was the continuance in force of the restraining order. Whether that was in fact the consideration, was an issue clearly made by the pleadings, and that the fact was material cannot be doubted. But upon this material issue there is no finding. Matters of evidence are found, from which the material fact might be inferred, but that is not sufficient to support the judgment.

VAN FLEET and MCFARLAND, JJ. We dissent. We think the conclusion reached in department correct, and adhere to the views expressed in the opinion there filed. 47 Pac. 124.

(119 Cal. 260)

ROHRBACHER v. KLEEBAUER. (S. F. 632.) (Supreme Court of California. Dec. 14, 1897.) CONTRACT-RESCISSION.

In an action upon a note given for the price of stock in two corporations, where the defense was a rescission of the contract of purchase, the right to rescind resting upon fraudulent representations inducing the defendant to purchase,

the defendant showed that he tendered back to the payee of his note the shares of one of the corporations, but admitted that he had sold the others. Held no defense.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; Charles W. Slack, Judge. Action by Philip Rohrbacher against F. C. Kleebauer. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

J. J. Stephens and Reddy, Campbell & Metson, for appellant. W. S. Goodfellow, P. R. Jarboe, and R. H. Countryman, for respondent.

HAYNES, C. This action is prosecuted to recover from the defendant $5,500 and interest, upon a promissory note made by defendant to plaintiff on December 27, 1890, due six months after date. The answer contains several defenses, alleging separately that there was no consideration for the note, and that the consideration had wholly failed, and also alleging that said note was given for the purchase price of 2,000 shares of the stock of the River, Harbor & Canal Dredging & Land Company, a corporation organized under the laws of the state of Colorado, of which the plaintiff was president and managing agent, and that he was induced to purchase said stock by and through the fraudulent misrepresentations of the plaintiff, upon which he relied,-the particulars of which need not be stated, as no question is made upon its sufficiency. It is sufficient to say that the alleged false representations were as to the value of a large tract of salt-marsh land owned by the corporation, its sound financial condition, and the value of its stock. These issues were tried before a jury. The plaintiff put in evidence said note, and rested; and at the conclusion of defendant's evidence, upon request of plaintiff, the court instructed the jury to return a verdict for the plaintiff for the amount of the note and interest, as prayed for, and defendant excepted. This appeal is from the judgment entered thereon, and from an order denying a new trial. Whether the court erred in so instructing the jury is the only question noticed in the briefs.

Much of the defendant's evidence related to the indebtedness of the corporation, and the value of its land. That evidence need not be repeated, however, as we shall assume, for the purposes of this opinion, that the allegations of the answer in that respect are true. Nor need we consider whether defendant relied, or was entitled to rely, upon plaintiff's representations as to the value of the stock, or the financial condition of the River, Harbor & Canal Dredging & Land Company, nor how far those statements were of material facts or the mere expression of opinion, since the defense is based upon an alleged rescission of the contract

of purchase; the right to rescind resting upon the alleged fraudulent misrepresentations. It is alleged in the answer that the Dumbarton Land & Improvement Company was incorporated December 22, 1891, and that the assets of the Colorado corporation were transferred to it, and that it assumed the liabilities of the prior corporation, and that defendant was induced to surrender the stock that he purchased from the plaintiff in December, 1890, and accept therefor 2,000 shares in the new corporation. But the evidence discloses that the Colorado corporation, in addition to the land mentioned, also owned certain Boschke patents for dredgers; that, at the same time that the Dumbarton Land & Improvement Company was formed, another corporation, known as the Western Dredging Company, was also formed, to which said Boschke patents were transferred by the Colorado corporation, and when defendant surrendered his stock in the Colorado corporation he received, not only the same number of shares in the Dumbarton Land & Improvement Company, but also 2,000 shares in the dredging company, and the Colorado corporation was thereupon disincorporated. These shares in the new corporations were delivered to defendant January 19, 1892, and at that date defendant paid on account of interest on his note $330. About six months after the new stock was delivered an assessment was levied by the Dumbarton Land & Improvement Company, and defendant saw the plaintiff about it, and complained that that was not as he "stated the stock in the first place," and was told by plaintiff that he had to have money to pay the interest on the mortgage.

Defend

ant then offered him back the stock. Plaintiff would not take it, saying that "he didn't want the stock. He wanted money." Defendant, however, paid that assessment, amounting to $500. About six months later there was another assessment levied by the Dumbarton Company, and defendant again offered plaintiff the stock, but it was not accepted. Defendant then tried to sell the stock, both in this city and San José, but without success. He did not pay the second assessment, and the Dumbarton stock was sold for that assessment. He admitted that upon the surrender of his stock in the Colorado corporation he received in exchange 2,000 shares in the Dumbarton Land & Improvement Company, and 2,000 shares in the Western Dredging Company, though he afterwards denied that he got 4,000 shares, and said he understood it was one company; but it was stipulated that 2,000 shares in each corporation were delivered to defendant, and prior to the above denial defendant was asked: "Q. Have you the shares of stock in the Western Dredging Company? A. No. Q. What have you done with them? A. I sold them." Mr. Stephens, called for defendant, testified that on behalf of defendant he offered to return the Dumbarton Land & Im

provement Company stock upon the cancellation of defendant's note, but did not offer to return the stock in the dredging company; that, like defendant, he thought there was but one corporation. It is clear that the stock in the dredging company was never tendered or offered to plaintiff; nor was it in any manner accounted for, except by defendant's statement that he sold it; nor was it shown to have been worthless. Waiving the question whether the payment of the first assessment after learning of the debts and mortgage was a ratification of the original purchase, with knowledge of the facts, it is clear that the tender of all the stock was essential to a rescission, or right of rescission, of the contract of purchase. In order to rescind, "he must restore to the other party everything of value which he has received from him under the contract; or must offer to restore the same, upon condition that the party shall do likewise, unless the latter is unable or positively refuses to do so." Civ. Code, § 1691, subd. 2. The refusal of the plaintiff to rescind was based upon the offer of the defendant to restore part of the stock; but, if it were otherwise, it was essential to the right of defendant to obtain a judgment of rescission that he should produce in court, for the benefit of the plaintiff, the stock of the dredging company. He could not defeat the action of the plaintiff, and retain any part of the consideration of the note. Maddock v. Russell, 109 Cal. 426, 42 Pac. 139, and cases there cited. The judgment and order appealed from should be affirmed.

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

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

(119 Cal. 244)

PLATT v. HAVENS. (S. F. 729.)1 (Supreme Court of California. Dec. 14, 1897.) RIGHT TO JURY-WAIVER.

1. An action to recover money on a note and for breach of contract entered into simultaneously therewith is one in which the parties are entitled to a jury, there being no case, consistent with the issues, which would entitle plaintiff to equitable relief.

2. Stipulation that action may be set down for trial at such time as will suit the convenience of the court after a certain day is not a waiver of jury, though there was no jury for that department of the court, and such fact was notorious.

Commissioners' decision. Department 2. Ap. peal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Action by A. G. Platt against H. B. Havens. Judgment for plaintiff. Defendant appeals.

Reversed.

T. L. Blakeman, for appellant. W. H. H. Hart (A. R. Cotton, of counsel), for respondent.

SEARLS, C. Appeal from a judgment of the superior court in and for the city and 1 Rehearing denied.

county of San Francisco, in favor of plaintiff, for $2,628.85, upon a promissory note made by defendant for $2,500, bearing interest after maturity, at 8 per cent. per annum, and dated August 21, 1894. Accompanying the note was an agreement executed by the parties, of which the following is a copy:

"Agreement.

"This agreement, made by and between H. B. Havens and A. G. Platt, both of San Francisco, Cal., witnesseth: That the Sau H. B. Havens hereby sells to said A. G. Plact twelve thousand five hundred (12,500) shares of the Crescent Mining Company stock, for the sum of five thousand dollars ($5,000), payments to be made and stock to be delivered as follows: H. B. Havens will deliver six thousand two hundred and fifty shares of the stock upon the signing of this agreement and the payment of two thousand five hundred dollars ($2,500) in cash. The balance, six thousand two hundred and fifty shares of stock, will be placed in escrow with Mr. A. K. Durbrow, and upon the payment to him of the balance of the amount due, viz. two thousand five hundred dollars ($2,500), this stock shall be delivered to A. G. Platt, the payment of this $2,500 to be made on or before August 21, 1895. Any dividends that may be declared on the said six thousand two hundred and fifty shares of stock are to be paid in to Mr. Durbrow, and applied upon the balance due on said stock in escrow, said amounts to be subject to order of II. B. Havens; it being agreed that said A. G. Platt shall at any time during the year stated have the privilege of paying up the amount due on the stock in escrow, and thereafter receive any dividends that may be declared on said stock. It is also understood and agreed to by the parties to this agreement that said H. B. Havens shall, at any time on or before August 21, 1895, have the privilege of offering A. G. Platt the sum of $2,500 and interest at the rate of eight per cent. per annum from the date of this agreement for six thousand two hundred and fifty shares of stock of said Crescent Mining Company; and, should said A. G. Platt refuse such offer, then the said A. G. Platt shall relieve said H. B. Havens from any future liability in connection with this transaction. It is also agreed and understood that in case the foregoing offer shall not be made, that the said A. G. Platt shall have the right to cancel this contract on August 21, 1895, and receive from said H. B. Havens the sum of $2,500, as per note of even date herewith, without interest or any dividends that may have been made on such stock. H. B. Havens agrees that a five-stamp mill shall be placed on the property, without any expense to said A. G. Platt, in consideration of this agreement. [Signed] H. B. Havens. [Signed] A. G. Platt.

"Witness: [Signed] A. K. Durbrow. "Witness to signature of A. G. Platt: [Signed] J. R. Palmer."

"That on the margin of said agreement, opposite the clause referring to said promissory note, was a further stipulation between plaintiff and defendant, made at the same time, in words as follows:

The

""This note is not to be transferred or used without maker's permission, but is to be canceled upon the canceling of this agreement or payment of amount named. [Signed] H. B. Havens. [Signed] A. G. Platt.'" The first point made by appellant for reversal was that the cause of action was one at law, and that the court below erred in denying to defendant a jury trial. The facts bearing on the question are as follows: cause was pending in department 4 of the superior court. On the 20th day of December, 1895, the attorneys for the respective parties stipulated as follows: "It is hereby stipulated between the parties to the aboveentitled action that said action may be set down for trial at such time as will suit the convenience of the court on any day after the 15th of January, 1896." The action was set for trial March 3, 1896, and, not being reached, was reset for March 13, 1896. Again it was apparent that the cause would not be reached, and the attorneys for the respective parties met the judge of the court at his chambers to arrange a future day for trial, and then and there counsel for defendant announced that he had not waived a jury trial, and insisted upon his right to a trial by jury. The judge then postponed the trial for one week, and directed counsel "to make his demand for a jury trial in open court." Thereupon, and in open court, on March 13, 1896, such demand for a jury trial was made. The court, on the 16th of the same month, denied the application for a jury trial, "on the ground that the action was one in which the parties were not entitled to a jury trial." Defendant excepted. It may be stated also that department 4 of the superior court was, and for two years had been, engaged in the trial of court cases, and had not during that period had a jury in attendance, and that the regulation to this effect was notorious.

The action is to all intents and purposes one at law to recover money upon a promissory note, and for the breach of the contract entered into simultaneously therewith. Plaintiff averred that he had complied with all the conditions to be by him kept and performed, but that defendant had violated the contract, etc. The contention of the respondent that plaintiff might have enforced a lien upon the stock mentioned in the agreement cannot be upheld, for the reason that there are no facts stated in the complaint going to uphold any such lien; but, on the contrary, the whole theory of the complaint is that plaintiff rescinded the agreement, as he had a right to do, by tendering a return of the stock, and demanding payment of the note, and he offers to return the stock to defendant, to surrender it in court, etc. There was no case that could be made con

Respondent contends, however, that, if it be conceded that the court was wrong in the reason which it gave for refusing a jury to defendant, it was still right in its conclusion, because defendant had, by the stipulation, in effect waived a jury. Trial by jury may be waived: (1) "By failing to appear at the trial"; (2) "by written consent * filed with the clerk"; (3) "by oral consent, in open court, entered in the minutes." Code Civ. Proc. § 631. The stipulation of the attorneys was entirely consistent with the idea of a trial either with a jury or by the court. It is only by ingrafting therein the fact that there was no jury for that department of the court, and that such fact was notorious, that the stipulation becomes of any force. We think this too vague and uncertain a basis upon which, in the face of our Code, to found a waiver. It was held in an early case (Smith v. Pollock, 2 Cal. 92) that the right of trial by jury cannot be waived by implication. In Swasey v. Adair, 88 Cal. 179, 25 Pac. 1119, it was held that a jury trial can only be waived in one of the modes prescribed in section 631, supra. In Biggs v. Lloyd, 70 Cal. 447, 11 Pac. 831, it was held that the right to a jury trial is not waived by neglecting to demand a jury at the time the case is called to be set for trial, notwithstanding a rule of court that a jury shall then be demanded. For the reasons given in these cases, we think there was no waiver of a jury in the manner prescribed by law, and that the court below erred in its ruling. We recommend that the judgment be reversed, and the cause remanded.

KELLOGG v. SCHEUERMAN et ux.' (Supreme Court of Washington. Dec. 13, 1897.) MALICIOUS PROSECUTION-PLEADING-EVIDENCEPROBABLE CAUSE-WITNESS-BRIEF.

1. To prove, in an action for malicious prosecution, what defendants testified to in the criminal proceeding, it is not necessary to call them, though they be within the court's jurisdiction, but the stenographer who took the testimony may testify relative thereto.

2. It is not necessary that under the point in appellant's brief, where the question of error in admission of testimony is argued, the part of the record should be indicated where such testimony and the objection thereto can be found, but it is enough that attention is specifically called thereto in the statement of the case in the forepart of the brief.

3. Plaintiff in an action for malicious prosecution is not entitled to have given in evidence all 1 Rehearing denied.

the testimony of defendants in the criminal proceeding, part of it being irrelevant and immaterial.

4. Defendants in an action for malicious prose cution may show probable cause under a general denial.

Appeal from superior court, King county; E. D. Benson, Judge.

Action by John D. Kellogg against Christian Scheuerman and wife. Judgment for plaintiff. Defendants appeal. Reversed.

Blaine & De Vries, for appellants. Lindsay, King & Turner, for respondent.

SCOTT, C. J. This action was brought to recover damages for malicious prosecution. The appellant Christian Scheuerman made complaint before a justice of the peace, charging the respondent and one Pratley with burglary in entering appellants' dwelling house. A warrant was issued, and the respondent and Pratley were arrested. Pratley was discharged upon a motion of the prosecuting attorney, and the justice of the peace discharged respondent, who thereafter brought this action, and recovered damages in the sum of $1,500; whereupon this appeal was taken.

It is first claimed that the court erred in admitting in evidence the complaint and warrant upon which the respondent was ar rested; but there is no merit in this contention, for the defendants admitted the proceedings before the magistrate.

It is next contended that the court erred in allowing proof by one Bolster, a stenographer, who took the testimony given before the justice of the peace of what Scheuerman and his wife there testified to. The first ground of objection is that Scheuerman and his wife were still within the jurisdiction of the court, and that they should have been called to prove what their testimony was; and the second is that the evidence given was not the best evidence. There is no foundation for the first objection. The witness was just as competent, as a matter of law, to testify to what they swore to, as were the Scheuermans. The other ground of the objection should have been sustained. It is contended by the respondent that the witness only used his notes of the testimony to refresh his recollection, but this is not borne out by the record, for he was directed by plaintiff's attorney to read the testimony given by the Scheuermans, which he did in its entirety. In State v. Freidrich, 4 Wash. 204, 29 Pac. 1055, 30 Pac. 328, and 31 Pac. 332, this court held that a stenographer who took down testimony could be asked as to what the testimony was, and could be permitted to refer to his notes to refresh his recollection, but that the notes were not competent evidence. However, it might be that the action of the court in the matter could be held harmless, considered with reference to the objection raised that it was not the best evidence, for

we fail to find any contradiction in their testimony here in any important particular of the fact that they testified before the justice of the peace as shown by the stenographer's report. In some instances they claimed that they were mistaken in giving such testimony, but admitted that they had so testified as to certain parts which were called to their attention. But it is further contended by appellants that much of the testimony given before the justice of the peace, and especially on the cross-examination of Mrs. Scheuerman, was inadmissible on this trial, and tended to prejudice the defendants. The respondent objects to the consideration of this, for the reason that ap pellants' brief does not indicate the part of the record where such testimony and the objection thereto can be found. It is true, it is not stated under the third point, where the matter is argued; but in making their statement of the case in the forepart of their brief the appellants have specifically called attention to the particular pages of the record where the objectionable matter may be found. One of the grounds of the objection was that it was improper; also that the plaintiff was not entitled to show ill-will on the part of the defendants against any third person. But the testimony was allowed to go in. Upon such cross-examination a number of questions were asked Mrs. Scheuerman with reference to her ill-will against Scheuerman's half-breed children. The plaintiff was not one of Scheuerman's children, but was a child of his first wife and her former husband. She was also asked to state if she had not told a certain party that she was bound to rid herself of these Siwash children, and if she did not state that, if she thought old Scheuerman would live five years, she would leave him at once. It is unnecessary to set forth all of these matters in detail, and, although the witness in some instances denied having made the statements, the very fact that she was asked many questions of that character may have tended to prejudice the defendants upon this trial, and some of the questions were answered substantially in the affirmative. It is contended by the respondent that he was entitled to have all of the testimony of the Scheuermans given before the justice of the peace go in evidence upon this trial, but this cannot be sustained, for the fact that immaterial and irrelevant testimony was admitted before the justice of the peace would be no ground for its admission in this case.

Another point made, which it might be well to notice, is the alleged error of the court in not allowing the appellants to prove what was said by certain detectives to the prosecuting attorney, in their presence, upon their statement of what they claimed to be the facts relating to the burglary; it being argued that this proof was admissible for the purpose of showing probable cause. The respondent contends that it was not admissible,

for the reason that defendants had not alleged probable cause for instituting the prosecution in their answer. But under the weight of authority we are of the opinion that they were entitled to show this under a general denial. Trogden v. Deckard, 45 Ind. 572; Rost v. Harris, 12 Abb. Prac. 446; Bruley v. Rose, 57 Iowa, 651, 11 N. W. 629; Folger v. Washburn, 137 Mass. 60.

It is also contended by the respondent that the ruling was harmless, because the jury in certain special findings found that the Scheuermans acted maliciously, that no burglary had been committed or attempted, and that such remarks were based upon their intentional false statements. Of course, what may have been said by the officers upon their fabricated statement could have been no justification for the prosecution. Nor was the question of probable cause involved at all if the Scheuermans, knowing no crime had been attempted by the plaintiff, had conspired to get him convicted upon a false charge. But we are not prepared to say that all the statements of the officers sought to be proved were hased upon what Scheuerman and his wife related as the facts. They at all times maintained the charge to be true, and whatever facts existed independently of their statements would have a legitimate bearing to support such contention. Reversed, and remanded for a new trial.

ANDERS, GORDON, and REAVIS, JJ.,

concur.

(18 Wash. 126) CITY OF SEATTLE v. WHITWORTH et al. (Supreme Court of Washington. Nov. 24, 1897.) FINDINGS-CONSTRUCTION-PRESUMPTION ON AP

PEAL.

* *

A finding of fact that the cost of a municipal improvement, an assessment lien for which was sought to be foreclosed, was greater than necessary, owing to errors of the city engineer, "but that the amount of the excess over the necessary cost is not determinable from the evidence," in connection with a finding of law "that by reason of the enlarged cost, * ** the specified amount of which is not determinable, the plaintiff is not entitled to recover any penalties, interest, or costs of this proceeding," will be construed in support of the decree for the amount of the assessment only, not as a statement that there was not sufficient proof to enable the making of any definite finding as to the amount of the increased expense due to the errors, but that such amount could not be determined exactly; with a determination, however, that the deduction of the amount of the penalties, interest, and costs was sufficient to cover the amount of such increased expense.

Appeal from superior court, King county; J. W. Langley, Judge.

Action by the city of Seattle against George F. Whitworth and another. Decree for plaintiff. Defendants appeal. Affirmed.

Greene, Turner & Lewis, for appellants. Pratt & Riddle (John K. Brown, of counsel), for respondent.