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188 Cal. 491 (205 Pac. 1076], it was held that a Pennsylvania corporation, doing business in this state, did not subject its solvent credits (resulting from that business) to taxation here, by transacting business through an agency established here, where such agency was not an independent business, nor an independent branch of the principal business of the corporation.

Respondent relies upon some other propositions to sustain the judgment, but we think it unnecessary to give them particular consideration at this time.

The judgment is affirmed.

Houser, J., and Curtis, J., concurred.

[Civ. No. 4550. First Appellate District, Division Two.—May 28,

1923.)

EMMA B. FREEMAN, Appellant, V. GEORGE J.

WALLACE et al., Respondents. [1] SALES-SALE OF AGENCY AND LEASE — RESCISSION RESTORATION

OF CONSIDERATION. In this action for rent, the cross-complaint having shown that as parts of one transaction plaintiffs sold defendants a certain agency for handling plaintiff's line of wares, and also assigned to defendants the lease of the premises that had been occupied by plaintiff, that because of plaintiff's failure to obtain the owner's consent to the assignment defendants were obliged to vacate and abandon the premises and surrender the possession thereof to plaintiff, “together with all that was therein contained belonging to" plaintiff, “as well as surrendering to? plaintiff "every other thing or right accruing to them from plaintiff, and that plaintiff “accepted the surrender” and “thereupon went into full possession of said premises and the use and occupation thereof, and resumed therein the conduct of the business," such allegations sufficiently showed the restoration of the consideration to plaintiff and were sufficient to support the cause of action against plaintiff for rescission.

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APPEAL from a judgment of the Superior Court of the City and County of San Francisco. T. I. Fitzpatrick, Judge. Affirmed.

The facts are stated in the opinion of the court.

Knight, Boland, Hutchinson & Christin for Appellant.

William J. Hayes for Respondents.

NOURSE, J.-Plaintiff sued in two causes of action, one for the recovery of four months' rent for the premises situated at 336 Sutter Street, San Francisco, the other for the recovery of $110 as moneys advanced by plaintiff for the account of defendants. The defendants answered that one month's rent had been paid and that they had been forced to vacate the premises because the plaintiff had no authority to assign to them the lease under which they occupied the premises. [1] They also filed a cross-complaint in which it was alleged that a contract of agency was executed by the same parties under which the defendants were authorized to sell on the premises certain personal property of the plaintiff during the term of the lease; that the defendants paid to the plaintiff $3,000 in cash under the contract and delivered to her their promissory notes in the sum of $2,000; that because of plaintiff's failure to secure the landlord's consent to the assignment of her lease to said premises, the defendants were compelled to and did vacate and abandon said premises and surrender the possession thereof to the plaintiff, "together with all that was therein contained belonging to said Emma B. Freeman, as well as surrendering to the said Emma B. Freeman every other thing or right accruing to them from the said Emma B. Freeman, and at the same time delivered to said Emma B. Freeman the keys to said premises, and the said Emma B. Freeman then and there accepted the surrender, aforesaid, and thereupon went into the full possession of said premises, and the use and occupation thereof, and resumed therein the conduct of the business that she had theretofore carried on therein, prior to the occupation of said premises by said cross-plaintiffs."

The trial court found in accordance with the allegations of the complaint, except that it found three months' rent to be due instead of four, as alleged. It also found the material allegations of the cross-complaint to be true. Upon these findings judgment was rendered in favor of the defendants for the return of the sum of $3,000, less the amount of the rentals and the money advanced to the defendants, and for the cancellation of the promissory notes. The appeal is taken from the judgment upon a bill of exceptions.

The only grounds urged in support of the appeal are that the cross-complaint failed to state a cause of action because it did not allege an offer to restore the consideration to the appellant, and that the evidence is insufficient to support the finding that the respondents surrendered to the appellant “every other thing and right accruing to them."

It appears that three contracts were executed by these parties, the assignment of the lease of the premises, the sale of the agency for the handling of appellant's exclusive line of wares, and the agreement of appellant to consign to respondents these wares and of the respondents to purchase certain personal property and fixtures on the premises. It is alleged in the cross-complaint that these agreements were all a part of the same transaction and depended upon securing the landlord's consent to the assignment of the lease. It is further alleged that when the respondents surrendered to the appellant the possession of the premises they also surrendered "every other thing or right accruing to them." The failure of consideration, as well as the acceptance of the surrender, were also alleged and these were sufficient to support cause of action for a rescission.

The evidence fully supports the finding that respondents surrendered to appellant every thing and right accruing to them. Furthermore, the answer to this allegation is merely a negative pregnant which did not put the matter in issue.

Judgment affirmed.

Sturtevant, J., and Langdon, P. 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 26, 1923.

(Civ. No. 4571. First Appellate District, Division Two.—May 28,

1923.)

R. ALBERTSON, Appellant, v. W. J. WESTLAKE et al.,

Defendants; BANK OF ITALY et al., Respondents. [1] MORTGAGES-PRIOR DEED OF TRUST-EVIDENCE-FINDINGS.-In this

action to foreclose a mortgage on real property, the evidence was sufficient to support the findings of the trial court that at the time of the making and delivery of the deed of trust in favor of the predecessor of the defendant bank, plaintiff, for a valuable con. sideration, entered into an agreement with said predecessor that ho would waive and relinquish the priority of his mortgage over said deed of trust, that said deed of trust should be a prior and superior lien upon the real property in question, and that the lien of plaintiff's mortgage should be second or inferior to said deed of trust.

APPEAL from a judgment of the Superior Court of Alameda County. J. J. Trabucco, Judge. Affirmed.

The facts are stated in the opinion of the court.

Sawyer & Sawyer and F. W. Sawyer for Appellant.

Donahue, Hynes & Hamlin for Respondents.

NOURSE, J.-This is an appeal from a judgment in favor of defendants in an action to foreclose a mortgage on real property. The mortgage was executed by one West, lake to the plaintiff. Thereafter Westlake executed his deed of trust to the Citizens Bank of Fruitvale, predecessor of defendant Bank of Italy, covering the same property. This deed of trust was recorded prior to the recordation of the mortgage. [1] The trial court found that, at the time of the making and delivery of the deed of trust, the plaintiff, for a valuable consideration, entered into an agreement with the Citizens Bank that he would waive and relinquish the priority of his said mortgage over said deed of trust; that said deed of trust should be a prior and superior lien upon said real property, and that the lien of plaintiff's mortgage should be second or inferior to said deed of trust.

The only attack upon the judgment is based upon the ground that the evidence does not support these findings.

62 Cal. App.-20

We have examined the record and find that there is sufficient evidence to support each finding under attack.

Judgment affirmed.

Sturtevant, J., and Langdon, P. 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 26, 1923.

(Crim. No. 1116. First Appellate District, Division Two.- May 28,

1923.]

THE PEOPLE, Respondent, v. TONY ALEXANDER et

al., Defendants; FRANK AUGUST AVILLA, Appellant.

[1] CRIMINAL LAW-MURDER-AGE OF DEFENDANT-EVIDENCE.- In this

prosecution for murder, the only evidence offered by the defendant in support of his claim that he was under the age of eighteen years and should be certified to the juvenile court having been uncertain and unsatisfactory, the trial court did not abuse its discretion in accepting the conflicting evidence upon the same subject

matter. [2] ID.--NATURE OF OFFENSE-EVIDENCE.— The evidence having shown

that the deceased was a young man who had caused no offense or provocation for any attack upon him, and that he was struck in the face by defendant while he had his left hand in his pocket and while defendant held his right hand, thus causing him to fall backward with his head striking upon the bard pavement and without any opportunity of defending himself against the fall, and the intent to kill having been plainly inferable from the evidence and the circumstances leading to the striking of the blow, the offense committed was murder, and not manslanghter.

APPEAL from a judgment of the Superior Court of Alameda County. Lincoln S. Church, Judge. Affirmed.

The facts are stated in the opinion of the court.

man.

2. Condition of mind of slayer which reduces murder to slaughter, note, 134 Am. St. Rep. 726.

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