that the court thereby assumes or suggests that the defendant is guilty of murder. [3] If the court gives a general instruction upon the law of accomplices, it cannot be said that the court assumes that the defendant was guilty of participation in the crime; and where, under the law and under the circumstances of a case such as this, a court gives a general instruction upon the question of intoxication, it does not thereby instruct the jury as a matter of fact that the defendant was intoxicated. It may be that the court, in the instant case, by the instruction complained of, injected into the case an immaterial element verging on error, but, even so, we are wholly unable to see how such instruction in any way actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right. (Sec. 1404, Pen. Code.) The practical administration of justice should not be defeated by a too rigid adherence to a close and technical analysis of the instructions to the jury. (People v. Bruggy, 93 Cal. 476, 483 [29 Pac. 26].)

We have seen that the language of the instruction is contained in section 22 of the Penal Code. [4] Whether an abstract instruction will call for a reversal of a case depends on the determination of the question whether, as a result of the instruction, prejudice resulted to the complaining party. It is generally agreed that legal abstractions in a charge are not always hurtful and, unless it appears that they have been made so, the giving of them, while never to be approved, is not reversible error. (14 R. C. L., sec. 49, p. 783.) There may, and no doubt do, arise cases in which an abstract proposition of law would be and is harmful to the accused. But this is not one of them. (People v. Rowland, 12 Cal. App. 6, 24 [106 Pac. 428].) We think the instruction, when taken in connection with the other instructions given, did not mislead or confuse the jury, and that the defendant had a fair trial.

The judgment and order appealed from are affirmed.

Tyler, P. J., and Richards, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 12, 1923.

Richards, J., pro tem., did not participate.

[Civ. No. 2605. Third Appellate District.-May 14, 1923.] I. SOFUYE, Appellant, v. PIETERS-WHEELER SEED COMPANY (a Corporation), Respondent.

[1] DEFAULT-APPLICATION FOR RELIEF-DISCRETION OF TRIAL COurt. An application for relief under section 473 of the Code of Civil Procedure from the consequences of a default judgment is addressed to the sound judicial discretion of the court to which such application is made; and, unless it can be said from the face of the record on appeal that, in granting or disallowing such a motion, the nisi prius court has abused the discretion committed to it in disposing of such a proceeding, the order will not be disturbed on appeal.

[2] ID. CONSTRUCTION OF SECTION 473, CODE OF CIVIL PROCEDURE DISPOSITION OF CASES UPON MERITS.-The power vested in trial courts by section 473 of the Code of Civil Procedure should be freely and liberally exercised by said courts to the end that they might make and direct their proceedings so as to dispose of cases upon their substantial merits, and without unreasonable delay, regarding mere technicalities as obstacles to be avoided rather than principles to which effect is to be given in derogation of substantial rights.

[3] ID.-RELIANCE UPON PROMISE OF THIRD PARTY TO DEFEND ACTION -EXCUSABLE NEGLECT.-Defendant having paid to a third party the sum of money which was due plaintiff's assignor, pursuant to a prior oral understanding with said assignor and upon an agreement between defendant and said third party that the latter would protect and defend defendant against any action which plaintiff might bring against defendant to recover the money so paid, and defendant having relied upon that agreement and forwarded the summons and complaint to the general manager and attorney in fact for said third party, defendant's act being characterized by good faith and an honest belief that said third party would, upon receiving the summons and complaint, seasonably interpose an answer or demurrer, it acted as any reasonably careful person would act and, therefore, its neglect to answer within due legal time was clearly excusable, within the meaning and intent of section 473 of the Code of Civil Procedure.

APPEAL from an order of the Superior Court of San Joaquin County setting aside a default judgment. D. M. Young, Judge. Affirmed.

The facts are stated in the opinion of the court.

Smallpage & Rex for Appellant.

Mastick & Partridge and Brooks Cox for Respondent.

HART, J.—The plaintiff prosecutes this appeal from an order setting aside a default judgment entered against the defendant on the seventeenth day of March, 1922.

The plaintiff is the assignee of one S. Kagi of the latter's interest in a certain contract entered into between said Kagi and the defendant on January 3, 1921. By the terms of said contract Kagi was to plant certain land then occupied by him in what is known as "The New Hope Pocket," San Joaquin County, in carrots, beets, parsnips, and parsley with seed to be furnished by the defendant. Kagi was to "tend, cultivate, and harvest the seed of such crops and to deliver such seed to defendant f. o. b. Hood, California." The defendant, in addition to furnishing such seed, was also to furnish the necessary sheets and bags for harvesting the crops and to pay said Kagi for the use of said land and for his services for the work required for the purpose, as follows: Twelve cents per pound for carrot seeds; eight cents per pound for beet seed; eight cents per pound for parsnip seed, and ten cents per pound for parsley seed, all to be marketable and produced and delivered, deducting, however, from the total amount of seed raised and delivered an amount of seed of the various kinds equal to the amount of seed of such kinds furnished by defendant to said Kagi to plant. It was further provided in said contract that, in case said Kagi failed or neglected properly to care for, cultivate, and harvest said crops of seed, defendant might do so, and might, in such event, charge the reasonable and necessary cost of doing said work to said Kagi. Under this contract defendant furnished said Kagi the necessary seed of the various kinds mentioned and Kagi planted the same in said land. It is alleged in the complaint that Kagi failed to fully harvest and deliver the same to the defendant and that pursuant to the provisions of said contract that the defendant, upon such failure, might itself complete the harvesting of said crops, the said defendant did harvest the same, took possession thereof and, so states the complaint, "necessarily expended in so doing certain moneys, but that plaintiff has no knowledge or information sufficient to en

able him to state what moneys were so expended by defendant." It is alleged, upon information and belief, that 31,580 pounds of carrot seed, 9,094 pounds of beet seed, 4,500 pounds of parsley seed, and 24,450 pounds of parsnip seed were harvested from said land and received by the defendant, and that the aggregate value thereof, figuring according to the agreed prices therefor, was the sum of $6,923.12, minus the necessary cost and expenses in completing the harvesting and delivery of said crops and also the amount due the defendant for the quantities of the several kinds of seed which defendant furnished said Kagi for planting, as to which amounts, the complaint states, the plaintiff has no such information or knowledge as to enable him to state the precise or approximate total thereof. The complaint further states that there is to be deducted the sum of $500 which was advanced under said contract by defendant to said Kagi. The prayer of the complaint is for an accounting by the defendant to him for the said crops of seed and that, upon the ascertainment by such accounting of the amount due the plaintiff, he be awarded judgment against the defendant for said amount.

The complaint was filed January 20, 1922. Summons was issued on the same day and the same was forwarded to the sheriff of the county of Santa Clara, who, on the twentythird day of January, 1922, served the same, together with a copy of the complaint, upon L. W. Wheeler, the president of the defendant, at the city of Gilroy, in the county of Santa Clara. The defendant having failed to appear and demur to or answer the complaint within the time prescribed by law, a demand was made by the plaintiff on the third day of March, 1922, for the entry of a default against said defendant and the clerk of the court, in accordance with said demand, entered said default. Thereafter, and on the thirteenth day of March, 1922, the court received evidence in support of the complaint and on the 17th of March filed its findings of fact, conclusions of law, and default judgment in favor of the plaintiff for the sum of $2,215.94.

On the sixth day of April, 1922, the defendant filed a notice of motion to set aside the default judgment on the ground that the defendant failed to answer the complaint within the time prescribed by law by reason of its "mistake, inadvertence, surprise and excusable neglect." (Sec. 473,

Code Civ. Proc.) Said notice fixed Monday, the tenth day of April, 1922, at 10 o'clock A. M. for the hearing of the motion. With this notice of motion the defendant filed an affidavit of merits made by L. W. Wheeler, the president of the defendant corporation, and also relied, in furtherance of the motion, on an affidavit filed on March 25, 1922, and made by W. H. George, the general manager and the attorney in fact for S. H. Cowell, Isabelia M. Cowell, and Helen E. Cowell, the owners of the land upon which the seeds referred to were grown and who had leased said land to said Kagi, said affidavit having been so filed in support of a motion previously noticed to stay execution of the default judgment. Accompanying these papers was also a pro. posed answer to the complaint. It is admitted by the appellant in his brief that respondent's proposed answer states a good defense to the complaint and, therefore, it will not be necessary to reproduce herein the contents of the proposed answer.

The affidavit of L. W. Wheeler, after stating that deponent is president of the defendant corporation and briefly reciting the terms of the contract between said defendant and the said Kagi, is in substance as follows: That at the time that said contract was entered into an agreement was had between the defendant, Kagi and the Cowells, above named, that Kagi was to execute and give to the said Cowells a chattel mortgage on the crops to be grown on said land as security for the payment of any rent which might fall due and become payable to the latter who, as seen, were the owners of the land; that it was further agreed that there should be excepted from said chattel mortgage any seeds which might be furnished and delivered to the defendant under its contract with Kagi upon the distinct understanding and agreement that any sums to become due to said Kagi under said agreement should be paid to the Cowells as further security for the payment of any rent due for the use of the land; that under the contract between Kagi and the defendant the sum of $1,157.79, and no more, became due to the former; that demand was made upon defendant by the plaintiff herein for any moneys due under said contract, and that when said demand was made the defendant agreed with the said Cowells and the latter agreed with the defendant that they would defend and protect the said defendant