Fortunately, however, in protecting the plaintiff's equities, it does not seem that the defendant is placed in any worse position than he would have occupied had the property never been conveyed to him; for it does not appear that he gave up or relinquished anything on the faith of the conveyance; but, on the contrary, it seems from his own testimony that the transfer was accepted by him, not in absolute payment or satisfaction of the debt due to him from F. A. Hassey, but rather as doubtful security for the antecedent indebtedness, which might or might not be of some avail.

It results that the judgment of the Court below must be reversed and the cause remanded, with directions to enter judgment for plaintiff in accordance with this opinion.

So ordered.

We concur McKinstry, J., Morrison, C. J., Myrick, J., Thornton, J.

(Sharpstein, J., being disqualified, did not sit in this

case.)

DISSENTING OPINION.

The property in dispute in the case of Rumsdell vs. Fuller, referred to in the opinion of Mr. Justice Ross, was conveyed during coverture to the wife for a money consideration. Presumptively the property thus acquired by the wife was common property. But that presumption was liable to be rebutted by proof that the money which was paid for the property constituted the separate fund of the wife; and that fact being proven, it was held by the Court that the wife was entitled to a decree setting aside, as a cloud upon her title, a mortgage upon the property which had been executed by the husband alone, upon the ground that the record of title in the case was notice to the mortgagee and all the world that the land in dispute might be the separate property of the wife, and every party dealing with it did so at his peril. "The plaintiff," says the Court, "was, by record, put upon inquiry as to the true condition of the title." But the case in hand is not that case.

It is true that the defendant in this had constructive notice that the title which he acquired to the land in dispute had at one time belonged to the plaintiff in the action as her separate property; but the record and judicial proceedings which imparted to him that notice also showed that she had, jointly with her husband, mortgaged it to one Nicholas Luning; that the mortgage had been, by judicial proceedings against her and her husband, foreclosed; and that her

title had passed by Sheriff's deed under decree of foreclosure to Burling, the purchaser at the foreclosure sale. The deed which Burling obtained at this compulsory sale was as effectual in vesting in him the title of the plaintiff to the land as though he had purchased it directly from her; and this title passed by deed from Burling to Hassey, and by deed from Hassey to the defendant, who took it without actual or constructive notice that Burling held the title in secret trust for Hassey, or that Hassey held it for his wife.

I therefore respectfully dissent from the judgment of my associates. I think the order of the Court below should be affirmed.

MCKEE, J.

DEPARTMENT No. 2.

[Filed August 18, 1880.]

No. 6672.

THE PEOPLE, RESPONDENT,

VS.

JOHN LANSING, APPELLANT.

EVIDENCE. Assessment roll of a county is not conclusive evidence of its contents in a proceeding directly based upon its correctness.

Appeal from the District Court of the Tenth Judicial District, Colusa County.

Jackson & Hatch, for respondent.

W. F. Goad, H. M. Alberry, and W. C. Belcher, for appellant.

MYRICK, J., delivered the opinion of the Court:

This is an action to recover a tax levied upon the property of defendant to aid in the construction of a school-house. The answer presented the issue that the Assessor of the district did not, for the purposes of the tax, assess the persons or property in said district. On the trial the defendant offered to prove that the entire assessment was simply copied from the assessment roll of the county, with respect to the names, the description, and valuation of the property; that the Assessor, as Assessor of the district, did not assess any of the persons or property in the district described in the assessment roll, but simply caused a copy to be made by the County Assessor. The Court sustained plaintiff's objection to the testimony, and defendant excepted.

The defendant asked the Assessor, witness, the following questions:

"Did you make any one of the assessments in this book [the assessment roll] set out, as the Assessor of the district? "Did you assess any of the property that is described in this assessment roll as Assessor of the district?"

Plaintiff's objection was sustained, and the defendant excepted.

These rulings of the Court were error. The assessment roll may have been prima facie evidence of its contents, but was not conclusive in a proceeding directly based upon its

correctness.

Another point is made by the appellant. It appears that the notices of the election were all posted at a small collection of houses at the crossing of roads, one being posted on a store and the others on two saloons-all at the meeting of two roads and within a circumference of eighty feet. The Court found that notices of the election "were duly and regularly posted in three of the most public places in said school district." There was evidence to sustain the finding that these were the most public places in the district, and we cannot disturb the judgment on that ground.

By reason, however, of the errors above referred to, the judgment and order denying a new trial are reversed, and the cause is remanded for a new trial.

We concur: Thornton, J., Sharpstein, J.

DEPARTMENT No. 1.

[Filed August 17, 1880.]
No. 10,536.

THE PEOPLE, RESPONDENT, vs. M. QUVISE, APPELLANT.

PRACTICE. Demurrer allowed where two separate and distinct offenses were charged in the information.

Appeal from the Superior Court of Stanislaus County.

A. L. Hart, Attorney-General, for respondent.

Johnson & Hazen, for appellant.

By the Court:

Two separate and distinct offenses were charged in the 'information. The demurrer on that ground should have been allowed.

Judgment reversed and cause remanded, with directions to the Court below to sustain the demurrer.

IN BANK.

[Filed August 23, 1880.]

No. 6500.

THOMAS DOWNING, RESPONDENT,

VS.

ROBERT N. GRAVES, APPELLANT.

FINDINGS must support the judgment. And in an action to recover for work and labor and materials furnished for the defendant, at his special instance and request, the findings must be upon that issue, and that the sum for which judgment was entered was a reasonable sum therefor. If the Court did not so find, the next inquiry will be, whether the Court has found facts from which the ultimate fact upon which the plaintiff could only recover is necessarily deducible.

NEW TRIAL. A motion for a new trial should be granted when the findings are not upon the issue, or where the facts found from which the ultimate fact upon which the plaintiff could only recover cannot necessarily be deducible.

Appeal from the District Court of the Twelfth Judicial District, San Francisco County.

Robinson, Olney & Byrne, for respondent.
Bishop & Fifield, for appellant.

SHARPSTEIN, J., delivered the opinion of the Court:

The plaintiff alleges in his complaint that between the 14th day of September, 1875, and the 12th day of August, 1876, he, at the special instance and request of the defendant, performed work and labor for and furnished materials to him which were reasonably worth $7,539, no part of which has been paid except the sum of $2,900.

This allegation is denied by the defendant in his answer. Upon that issue the parties went to trial before the Court without a jury. The Court filed its findings of fact and conclusions of law, and thereupon ordered judgment to be entered in favor of the plaintiff for the sum of $5,117.05. Judgment was entered, and the defendant moved for a new trial upon a statement. The motion was denied, and from the order denying a new trial and the judgment this appeal is taken.

The first question to be considered is, whether the Court below found in favor of the plaintiff upon the main issue in the case-i. e., that the plaintiff performed work and labor and furnished materials for the defendant, at his special instance and request, reasonably worth the sum for which the

Court ordered judgment to be entered. We think that it must be conceded that the Court did not directly so find. And if it did not, our next inquiry must be whether the Court has found facts from which the ultimate fact upon which the plaintiff could only recover is necessarily deducible. The Court, in effect, found that the defendant entered into a contract in writing with J. O'Mahoney & Brother to build him a house according to certain written specifications, which provided for the painting, and the manner in which it was to be done.

J. O'Mahoney & Brother entered into a verbal contract with the plaintiff, by which he agreed to do the painting described in said specifications for the sum of $2,900. The defendant directed the painting to be done in a much more elaborate and expensive style than the specifications called for, and in such a manner that the specifications cannot be used in estimating the value of the work actually done. Said changes in the kind and character of the work were done under the directions of the defendant, and frequent changes were made after the work had been nearly completed in accordance with the specifications or previous directions, making it necessary to repaint the work already done; and "that during the progress of the work J. O'Mahoney & Brother notified the defendant that the changes were so great that they would not be responsible for them, and that thereupon the sub-contractors, including Downing, were notified to present their bills to defendant direct when the work should be done." The Court also found that the plaintiff did certain other painting for the defendant outside of the house to which the contract between J. O'Mahoney & Brother and defendant related. That the value of the labor and materials used in painting the house, for which no provision was made in said contract, was $274.10; and for whitening a cellar, $60. What the painting of the stable and fences was reasonably worth the Court omits to find.

Of the right of the plaintiff to recover the value of the labor and materials employed and used in the prosecution of other work for the defendant than that provided for by the contract between the defendant and J. O'Mahoney & Brother we have no doubt, nor do we understand it to be a subject of controversy in this action. But we are unable to ascertain from the findings the value of the labor and materials so employed, except as above stated. The Court further found: That the sum of $2,900 would be a fair price for the work described in said specifications, and would fully pay for the labor and materials required to be performed and used there