76 Cal. 60-84. COX v. MCLAUGHLIN; 9 Am. St. Rep. 164; see COX v. DELMAS, 99 Cal. 117, 119.

Action on Quantum Meruit is maintainable by contractor on employer's failure to pay installments of contract price, p. 63.

To same effect in Porter v. Reservoir Co., 100 Cal. 502, 503, and S. F. etc. Co. v. Dumbarton etc. Co., 119 Cal. 274, holding such nonpayment to constitute breach; Boyd v. School Township, 124 Ind. 195, on point that municipal corporation is liable in quantum meruit for property appropriated through illegal contract. Note citations: Warren etc. Co. v. Holbrook, 16 Am. St. Rep. 792, on general subject.

Statute of Limitations will not bar amended complaint where no new cause of action introduced, p. 64.

To same effect in Vanderslice v. Matthews, 79 Cal. 277, further holding no new cause introduced; Nellis v. Pacific Bank, 127 Cal. 168, 170, noted under Barber v. Reynolds, 33 Cal. 501; Frost v. Witter, 132 Cal. 424, 427, 84 Am. St. Rep. 56, noted under Lestrade v. Barth, 17 Cal. 288. Interest is not Allowable on unliquidated damages or demands, pp. 67, 71.

To same effect in Easterbrook v. Farquharson, 110 Cal. 317, denying interest in action to settle account, prior to judgment; Swinnerton v. Argonaut etc. Co., 112 Cal. 379, as to quantum meruit for services; Ferrea v. Chabot, 121 Cal. 237, as to breach of contract to supply water. Cited also as to distinguished cases in Hewes v. Fruit Co., 106 Cal. 448, denying interest for breach of contract of sale of personalty without established market value; Macomber v. Bigelow, 123 Cal. 535, and 126 Cal. 15, sustaining new trial where interest was so allowed. Note citations: Township of Plymouth v. Graver, 11 Am. St. Rep. 874; Fremont etc. Co. v. Marley, 13 Id. 488, and Sullivan v. McMillan, 53 Id. 247, on general subject.

76 Cal. 87-90. KERNS v. MCKEAN. S. C. 65 Cal. 411; and see KERNS v. DEAN, 77 Cal. 557.

Books of Account held properly excluded, p. 89.

Cited in Butler v. Estrella etc. Co., 124 Cal. 242, noted under Watrous v. Cunningham, 65 Cal. 410.

76 Cal. 90-92.

WHEELER v. KASSABAUM.

Order Granting New Trial sets aside judgment, p. 92.

To same effect in Pierce v. Birkholm, 110 Cal. 672, but holding such judgment again restored by appeal from such order

Appeal from Order on New Trial will not permit examination of sufficiency of complaint, p. 92.

To same effect in Alpers v. Hunt, 86 Cal. 82; 21 Am. St. Rep. 19,

but ruling aliter where new trial granted for error in denying nonsuit based on insufficiency of complaint. Distinguished in Pierce v. Birkholm, 110 Cal. 672, discussing effect on judgment of order granting new trial; cited in Lambert v. Marcuse, 137 Cal. 44, declining to consider complaint.

76 Cal. 92-96. SAN LUIS OBISPO CO. v. DARKE.

Official Salary annexed to consolidated offices is abolished in their separation, p. 94.

Cited in Vail v. San Diego Co., 126 Cal. 37, on point that legislature may fix mode and measure of payment of salaries; State v. La Grave 23 Nev. 125, discussing local acts.

76 Cal. 96-102. TUGGLE v. MINOR.

Account is Stated as to items agreed upon although others are left for future adjustment, p. 100.

To same effect in Baird v. Crank, 98 Cal. 298, holding statement complete although right to payment is reserved for future day; Ketchum v. Stetson etc. Mill Co., 33 Wash. 95, agreed price for logs sold is sufficiently shown by vendor, where vendee made statement of account at price contended for.

Statute of Limitations.-Acknowledgment need not be made expressly but may be implied, p. 101.

To same effect in S. P. Co. v. Prosser, 122 Cal. 415, 419, holding statute extended by debtor's letter; Bullion etc. Bk. v. Hegler, 93 Fed. 893, quoting Southern Pac. Co. v. Prosser, 122 Cal. 415.

76 Cal. 103-106. PARKER v. REAY.

Street Assessments.-Invalidity of one of two separate assessments will not affect other when both made for different portions of work and separate demand made for each, p. 105.

To same effect in Ede v. Knight, 93 Cal. 165, sustaining action for valid portion; McDonald v. Mezes, 107 Cal. 495, modifying judgment by striking out illegal portion.

Street Assessment is Void when appearing by diagram to have been levied on property not chargeable therewith, p. 105.

To same effect in Ryan v. Altschul, 103 Cal. 177, further holding assessment not separable and entirely void.

Specification of Particulars of Insufficiency referring to finding by number is insufficient, p. 105.

To same effect in Anthony v. Jillson, 83 Cal. 299. holding specification insufficient; Spotts v. Hanley, 85 Cal. 165 (cited in Haight v. Tryon, 112

Cal. 7), ruling similarly; Kumle v. Grand Lodge, 110 Cal. 214, as to similar general specifications; Van Pelt v. Park, 18 Utah, 147, noted under Treat v. Forsyth, 40 Cal. 488; Finlen v. Heinze, 28 Mont. 561, specification merely alleging that evidence is insufficient to justify a certain finding is insufficient.

76 Cal. 106-108. BAGNALL v. ROACH.

Errors in Law as to admission of evidence cannot be reviewed on appeal unless specified, p. 107.

To same effect in Smith v. Smith, 119 Cal. 186, notwithstanding their discussing in briefs on appeal.

New Trial for newly discovered evidence will be denied where failure to introduce was due to attorney's mistake as to law, p. 107.

See note to Brown v. Mitchell, 11 Am. St. Rep. 757, on general subject.

76 Cal. 109-113. HOGINS v. SUPREME COUNCIL; 9 Am. St. Rep. 173. Insurance Policy in mutual association is forfeited by violation of bylaws, although member not suspended or expelled therefor, p. 112.

To same effect in Smith v. Knights, 36 Mo. App. 192, as to use of liquors; Knights v. Keener, 6 Tex. Civ. App. 272, as to suspension for nonpayment of dues; Langnecker v. Trustees, 111 Wis. 290, 87 Am. St. Rep. 868, as to sale of liquor in violation of by-laws. Distinguished in Zepp v. Grand Lodge, 69 Mo. App. 493, as to misstatements in application; when it did not form part of policy. Note citations: Bankers' etc. Assn. v. Stapp, 19 Am. St. Rep. 786, and Lake v. Minnesota etc. Assn., 52 Id. 574, on forfeiture and its waiver.

76 Cal. 113-116. SWINNERTON v. MONTEREY COUNTY.

Attorney cannot recover contingent fee on settlement of suit by client, when such suit could not have been successful, p. 114.

To same effect in Merchants' etc. Bank v. Eustis, 8 Tex. Civ. App. 357, also discussing client's right to rescind employment for misrepresentation. Note citation: Babbitt v. Bumpus, 16 Am. St. Rep. 593, on contingent fees.

Officers are separate and distinct, although held by same person, p.

115.

Cited in Webster v. Board, 140 Cal. 332, noted under Lathrop v. Brittain, 30 Cal. 680.

Application for Purchase of land is invalid when affidavit false, p. 120. To same effect in Taylor v. Weston, 77 Cal. 535, as to actual settle

ment; McIntyre v. Sherwood, 82 Cal. 140, as to absence of other settlers; and, on same point, dissenting opinion, Cucamonga etc. Co. v. Moir. 83 Cal. 110, and Jacobs v. Walker, 90 Cal. 46, 47, citing main case (p.121) on point that each party must allege and prove respective facts alleged by him and required by statute; Wrinkle v. Wright, 136 Cal. 495, noted under Gavitt v. Mohr, 68 Cal. 511.

76 Cal. 121-125. PEOPLE v. VAN NESS.

Surety on Official Bond is liable on failure to pay over moneys when due, without demand, p. 124.

To same effect in Clelland v. McCumber, 15 Colo. 357, holding action barred under local statutes.

Public Officers.-Action by state to recover fees illegally retained is one arising under statute, p. 124.

Cited in Sonoma County v. Hall, 132 Cal. 591-593, noted under Higby v. Calaveras County, 18 Cal. 180; Oregon v. Davis, 42 Or. 36, action on official bond for defalcation is on a liability created by statute and must be commenced within six years under B. & C. Comp., section 6.

76 Cal. 125-127. DENGLER v. MICHELSSEN.

Assignee of Lease is released from future rent by reassignment to original lessee, p. 127. See note to Washington etc. Co. v. Johnson, 10 Am. St. Rep. 560, on general subject.

Lessees is Released from payment of rent by lessor's failure to deliver possession, p. 127.

To same effect in Brandt v. Phillippi, 82 Cal. 641, holding abandonment of lease by mutual consent inferable from such failure. Note citations: Bedell v. Wilder, 36 Am. St. Rep. 875, and Minneapolis etc. Co. v. Williamson, 38 Id. 482, on general subject.

76 Cal. 127-131. LEEKE v. HANCOCK.

Subsequent indorser paying note may recover of prior indorser, amount so paid, p. 130.

Approved in Kellogg v. Lopez, 145 Cal. 499, applying rule where corporation's note indorsed as accommodation.

Joint Maker of Note may be surety as to comaker, but principal as to payee, p. 130.

To same effect in Eppinger v. Kendrick, 114 Cal. 627, but allowing joint maker to show real position as surety as against payee who has not acted on apparent principalship; Casey v. Gibbons, 136 Cal. 371, noted under Farmers' etc. Bank v. Stover, 60 Cal. 387; Farmers' etc. Bank v. De Shorb, 137 Cal. 693, noted under Harlan v. Ely, 55 Cal. 340 Note citation: Altoona etc. Bank v. Dunn, 31 Am. St. Rep. 746.

Notes Cal. Rep.-231.

Error in Admitting Evidence is not reversible where not prejudicial, p. 134. See note to Dillingham v. Russell, 15 Am. St. Rep. 762, on nonreversible errors.

76 Cal. 134-136. BLAIR v. LUNING.

Street Assessment cannot be attacked in action thereon for errors cognizable on appeal to board, p. 136.

To same effect in McVerry v. Boyd, 89 Cal. 310, as to including of improper charges; De Haven v. Berendes, 135 Cal. 181, but holding void assessment not validated by nonappeal.

76 Cal. 136-144. OGLESBY v. HOLLISTER; 9 Am. St. Rep. 177. Recording of Void Tax Deed imparts no notice to any person, p. 140. Cited in Grant v. Cornell, 147 Cal. 567, where certificate of sale to state contained correct description of land, and was not subject to defects alleged in assessment, its record imparted constructive notice to purchaser. Note citations: Cole v. Green, 14 Am. St. Rep. 284, and Duke v. Markham, 18 Id. 893, on general subject.

Adverse Possession.-Color of Title is sufficiently shown by void tax deeds, p. 140.

To same effect in Silvarer v. Hanson, 77 Cal. 582, holding such possession shown; Chabert v. Russell, 109 Mich. 574, admitting same in evidence to show character of possession.

Cotenancy.-Possession by one is that of all, p. 140.

Note citations: Cocks v. Simmons, 29 Am. St. Rep. 32, and Moss v. Rose, 50 Id. 746, on general subject.

Adverse Possession against Cotenant will be established when notorious in character and otherwise conformable to statute, p. 142.

To same effect in Feliz v. Feliz, 105 Cal. 5, sustaining instructions and holding such possession shown. Note citations: Barker v. Jones, 13 Am. St. Rep. 587; King v. Carmichael, 43 Id. 310, and Alexander v. Gibbon, 54 Id. 763, on general subject.

76 Cal. 145-149. MILLER v. CALIFORNIA INSURANCE CO.; 9 Am. St. Rep. 184.

Marine Insurance.-"Perils of the Sea" defined, p. 147.

See note to Crescent etc. Co. v. Vicksburg etc. Co., 30 Am. St. Rep. 539, on general subject.

76 Cal. 149-152. FANNING v. BOHME.

Street Assessment.-Assessment and other papers specified in statutes make prima facie case of regularity of proceedings, p. 151.