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76 Cal. 171-172. SMITH v. MOTT.
Pledge by Bailee is valid as against owner when he agrees to allow property to remain in pledge if pledgee will forbear debt, p 172.
To same effect in Patton v. Joliff, 44 W. Va. 91, but holdieg such forbearance not asked nor given.
76 Cal. 173-174. SIEBER v. BLANC.
Landlord is not obliged at common law to put or keep property in repair, p. 173.
Cited in Gately v. Campbell, 124 Cal. 522, noted under Brewster v. De Fremery, 33 Cal. 341. See note to Sawyer v. McGillicuddy, 10 Am. St. Rep. 264, and Gregor v. Cady, 17 Id. 470, on general subject.
Landlord is not Liable to Tenant for injuries received by reason of condition of premises, notwithstanding covenant to keep in repair, p. 174.
To same effect in Smith v. Buttner, 90 Cal. 99, sustaining judgment on pleadings; Daley v. Quick, 99 Cal. 182, holding landlord not liable and no misrepresentation to tenant shown; Callahan v. Loughran, 102 Cal. 480, holding complaint insufficient and discussing such liability generally.
Landlord's Failure to Repair entitles tenant only to privileges specified in statute, p. 174.
To same effect in Moroney v. Hellings, 110 Cal. 221, denying right of tenant to set up such failure in action for unlawful detainer after rent unpaid. Note citations: Minneapolis etc. Co. v. Williamson, 38 Am. St. Rep. 483, on landlord's statutory duties.
76 Cal. 175-177. JACOBS v. WALKER.
Land Contest may be had although certificate of purchase issued, p. 176. *
To same effect in Taylor v. Weston, 77 Cal. 541, holding such certificate not conclusive; McFaul v. Pfankuch, 98 Cal. 402; further discussing bar of such proceeding by limitation; Polk v. Sleeper, 143 Cal. 74, noted under Hinckley v. Fowler, 43 Cal. 64.
76 Cal. 177-181. TURNER v. McDONALD; 9 Am. St. Rep. 189.
Vendor and Vendee—Title.—“Good” and “perfect” titles defined, p. 179, 180.
Cited in Reynolds v. Borel, 86 Cal. 542, holding title imperfect and subject to grave doubts under facts, and Sheehy v. Miles, 93 Cal. 292, ruling similarly; Peckham v. Stewart, 97 Cal. 153, also ruling similarly when contract specified “good and perfect” title, and Koshland v. Spring, 116 Cal. 699, as to “good and satisfactory” title; Gwin v. Calegaris, 139 Cal. 387, holding title partly dependent on adverse possession not a “perfect” title; Muller v. Palmer, 144 Cal. 313, holding title a marketable one; Taylor v. Williams, 2 Colo. App. 564, on point that specific performance will not be decreed when title can be settled only by future litigation; and see Angus v. Robinson, 62 Vt. 65, as to specific performance; Meeks v. Garner, 93 Ala. 21, holding title to be “perfect and good”; Ankeny v. Clark, l Wash. St. 557, on point that equitable title will not satisfy bond for deed. Note citations: Town
shend v, Goodfellow, 12 Am. St. Rep. 742, on specific performance;
Worley v. Nethercott, 25 Am. St. Rep. 212, on remedies of vendee when
title defective; Herman v. Somers, 38 Id. 853, on marketable title.
Power of Attorney to sell land of principal does not cover property
held under mortgage in form of deed absolute, p. 180. Note citations: Penfold v. Warner, 35 Am. St. Rep. 594, on general
subject. Mortgage does not convey title, although in form of deed absolute, p.
Note citations: Ensminger v. Ensminger, 9 Am. St. Rep. 463, on evi
dence to show such deed a mortgage.
76 Cal. 181-186. COPERTINI v. OPPERMANN. Vendor and Vendee.—Title is good when owner has legal and equitable title to all the land, p. 186. To same effect in Bates v. Howard, 105 Cal. 184, holding title involved to be such. Jurisdiction of Superior Court embraces action by vendee for return of deposit because title invalid, although less than three hundred dollars, p. 186. Cited in Boyd v. Southern Cal. Ry. Co., 126 Cal. 574, and Raisch v. Sausalito etc. Co., 131 Cal. 217, noted under Holman v. Taylor, 31 Cal. 338; Hart v. Carnall etc. Co., 101 Cal. 162, as to action for breach of contract to locate plaintiff on vacant government land, involving questions of title and possession thereof, and see S. C. 103 Cal. 142, holding rule applicable although such questions only incidentally involved.
76 Cal. 190-191. PEOPLE v. ANDERSON ETC. ROAD CO. Franchises.—Tolls are not collectible on wagon road after expiration
of franchise, p. 190. To same effect in People v. Turnpike Co., 122 Cal. 340, but granting
right to collect tolls as fixed by supervisors, on extension of franchise
under code; Virginia etc. Co. v. People, 22 Colo. 435, construing local
76 Cal. 102-106. COCKRILL V. HALL.
Instructions.—Exceptions to must be specific, p. 195.
76 Cal. 197-202. EMERSON v. BERGIN.
Statute of Frauds,-Agreement within need not be alleged to be in
To same effect in Bradford etc. Co. v. Joost, 117 Cal. 207, as to agree-
76 Cal. 203-207. HOBSON v. HASSETT; 9 Am. St. Rep. 193.
Agency.—Note signed X, “president,” will hold signer personally
To same effect in Kerry v. Marine Co., 121 Cal. 570; 66 Am. St. Rep.
General Citation.—Janes v. Citizens Bank, 9 Okla. 564.
76 Cal. 208-212. SPARROW v. RHQADES; 9 Am. St. Rep. 197.
Ejectment.—General Denial permits defense of invalidity of deed un-
To same effect in Eastman v. Gurrey, 15 Utah, 420, as to plaintiff's
76 Cal. 212-221. BLACKWOOD v. CUTTING PACKING CO.; 9 Am. St.
To same effect in Shoemaker v. Acker, 116 Cal. 245, as to lemon crops
Sales.—Title does not pass till payment of price when terms were cash on delivery, p. 215.
Cited in Hilmer v. Hills, 138 Cal. 139, holding fact that bills of lading were taken out in vendee's name not conclusive as to passing of title on such sale.
Sale.—Title Passes when goods are identified, although to be weighed or measured thereafter, p. 217.
To same effect in Lassing v. James, 107 Cal. 357, as to hay in specified stacks. Note citations: Foley v. Felrath, 39 Am. St. Rep. 44, on general subject.
Sales.—Contract using word “sold” is not conclusive as indicating consummated sale, p. 218.
To same effect in Eaton v. Richeri, 83 Cal. 186, on point that “sold” does not necessarily or always mean that conveyance is made or title passes.
Breach of Warranty is not waived by acceptance of part of goods when all rights reserved, p. 220.
See notes to Woodruff v. Graddy, 44 Am. St. Rep. 36, on general subject.
76 Cal. 222-228. CITY OF NAPA v. EASTERBY.
Street Assessments.--Publication of ordinance does not exend to maps, et cetera, referred to therein, p. 227.
To same effect in In re Soher, 78 Cal. 481, on point that document referred to in will is not a part thereof as to attestation.
76 Cal. 230-234. HUGHES v. WHEELER.
Insufficient Pleading of Estoppel cannot be first raised on appeal when not when objected to below, p. 232.
To same effect in Sukeforth v. Lord, 87 Cal. 403 (cited in Mangum v. Mining Co., 15 Utah, 548), as to general allegation of fraud in answer; Willey v. Bank, 141 Cal. 518, as to plea of estoppel; Treanor v. Williams, 145 Cal. 320, applying rule in election contest.
Appeal.—Error in Instructions is not reversible when immaterial, p. 234.
To same effect in Edwards v. Wagner, 121 Cal. 378, as to such error; Foster v. Carr, 135 Cal. 87, applying rule in case of variance and admission of evidence when all the facts appeared; Lima v. County Bank, 142 Cal. 248, noted under Green v. Ophir etc. Co., 45 Cal. 522.
Error in Admitting Evidence is not reviewable in absence of specific objection, p. 234.
See note to Mutual etc. Soc. v. Lackland, 10 Am. St. Rep. 300, on general subject.
76 Cal. 235-239. SIERRA MILLING ETC. CO. v. HARTFORD ETC. CO.
Insurance—Warranty to Keep Watchman.—Insured is not liable for watchman's negligence, p. 237.
Distinguished as dictum in McKenzie v. Insurance Co., 112 Cal. 559, holding insurer not liable where watchman's service was insufficient, Followed in Phoenix etc. Co. v. Coffman, 10 Tex. Civ. App. 634, holding condition fulfilled by insured; McGannon v. Michigan etc. Fire Ins. Co., 127 Mich. 646.
76 Cal. 240-242. CLEARY v. CITY RAILROAD CO.
Damages for Death of Child through negligence may include mental anguish and suffering of parent, p. 241. Overruled in Morgan v. S. P. Co., 95 Cal. 518; 29 Am. St. Rep. 146, confining damages to actual pecuniary injury, and see Webb v. Denver etc. Co., 7 Utah, 20, 22, 23, where denied. Note citations: West v. Telegraph Co., 7 Am. St. Rep. 535, and Louisville etc. Co. v. Goodykoontz, 12 Id. 376, 383, on general subject. Erroneous Instruction Improperly Limiting Jury in determining damages is presumed erroneous, p. 242. Approved in Holt v. Spokane etc. Ry, 3 Idaho, 718, following rule.
76 Cal. 251-255. DODGE v. YATES. Ejectment.—Constructive Possession of public land by grantee thereof is shown as against trespasser by actual possession of part, p. 254. To same effect in Neuebaumer v. Woodman, 89 Cal. 315, as to mining claim, when plaintiff and defendant have each failed to mark boundaries.
76 Cal. 255-257. RANDALL v. HUNTER.
Partner may issue firm note for individual debts when so agreed, p.
257. See note to Farwell v. Trust Co., 22 Am. St. Rep. 748, on general sub
Time to Plead is not extended by pendency of motion to dismiss, p.
259. To same effect in Higley v. Pollock, 21 Nev. 209, ruling similarly as
to motion to quash summons.
Amendment of Complaint after default is allowable for correction of name of defendant, p. 259.
To same effect in Bennett v. Seibert, 10 Ind. App. 385, as to correction of name of party in assignment of errors.