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failure to allege certain facts, which he enumerates. But they were alleged in the petition for the probate of the will, and while, as a matter of good pleading, they should have been set out in the written contest, it is apparent after trial that appellant was not damaged by the omission. Besides, they were alleged in the contest of the Clements, and if the latter was sufficient, the final judgment should not be disturbed simply because of an erroneous ruling as to the other contest.

The only serious objection to the complaint of the Clements is that the allegation of undue influence is that of a legal conclusion, but when the whole of it is considered we are satisfied that sufficient facts appear to measure up to the requirement of the rule as stated in the Estate of Olson, supra. Here, again, we may say the case was fully tried upon the theory of the sufficiency of the pleadings and appellant was not misled nor injured by any of the supposed shortcomings.

[8] Complaint is made of the instruction by the court that the contest was upon two grounds, namely, unsoundness of mind and the undue influence of Charles E. Welsh. The contention is that two other grounds were attempted to be set up, to wit, the nonexecution of the will and that Charles E. Welsh was not a fit and proper person to be appointed as executor of the will, and as none of these had been with. drawn or dismissed, the court should have directed the jury "to wholly disregard all allegations of contest other than the one of soundness of mind and the question of undue in. fluence." We see no merit in this criticism. The court in effect told the jury to disregard the other grounds when it confined the attention of the jury to the two which were mentioned. We may add that the matter was placed beyond controversy by the second instruction in which the court expressly stated that "the issues which you are to determine in this action are the following" (specifying the two already referred to). If appellant desired a more specific statement as to the other two supposed grounds he should have requested it.

[9] It was proper to read section 1575 of the Civil Code as to what constitutes “undue influence.” It cannot be supposed that the jury did not need such instruction and, as to the claim that it was not applicable to the facts, since there was no evidence that appellant took "an unfair advantage of the mental weakness of testatrix, we think there was a sufficient showing of circumstances to justify the instruction. The word “her” was substituted for “him" in the section, but manifestly this was harmless, as any application of the instruction would necessarily be to proponent's dealings with her, the testatrix. The masculine pronoun would have answered the purpose, of course, just as well, but the change was innocuous.

A similar objection is made to instruction No. 4 upon the ground that "there was absolutely no evidence of any improper pressure or other unfair conduct exercised by Charles E. Welsh or anyone else which would overcome the volition of the testatrix.'”. There was, manifestly, no such direct evidence, but, as already stated, the theory embodied in the instruction finds substantial support in the circumstances of the case. Appellant is entirely mistaken in the claim that the instruction “assumes, in its initial statement that it is a fact that in this particular case 'improper pressure' and “unfair conduct' had been used; in other words, that undue influence had been established.” The language of the instruction is clearly hypothetical: “A will is obtained by undue influence where improper pressure or other unfair conduct has overcome, etc. It left to the jury to determine whether it was a case where such conduct existed. This is made even plainer by the concluding portion of the instruction.

[10] Appellant complains most bitterly of instruction No. 6. He says that “the mere fact that he visited testatrix frequently at the said hospital, and which was shown conclusively by the evidence was for the purpose of arranging her affairs at her own request, could not be considered as sufficient evidence at all of any undue influence." Appellant is clearly right in that claim, but the court did not so instruct the jury. The instruction was that “it is proper for the jury to take into consideration all the actions of said Charles E. Welsh as shown by the evidence at and immediately prior to the execution of the instrument." No specific mention was made of his visits to the hospital.

Nor did the instruction leave the jury at liberty to find undue influence because Charles E. Welsh “sent Mr. Brittan to testatrix, though at the request of testatrix, if they thought Mr. Brittan had exercised any influence over testatrix;' It simply directed the jury that Welsh's relation to and connection with the attorney who drew the will might be considered as a circumstance in the case. There was no necessity for giving such instruction but we can see no prejudicial error therein.

62 Cal. App.--28

[11] Appellant, claiming that it violated scorion 19 of article VI of the state constitution, prohibiting judges from charging jurors with respect to matters of fact, criticises the action of the court in giving this instruction : “The court instructs you that inequality in the distribution of property among those who would inherit if no will had been made, is not of itself evidence of undue influence or unsoundness of mind, yet it may be considered as a circumstance by the jury together with all the other facts and circumstances shown by the evidence as tending to establish undue influence or unsoundness of mind.”

We do not consider the instruction as violative of said provisions of the constitution. The court by said instruction did not direct the jury to consider said circumstance for such purpose nor was there any intimation as to the weight that should be accorded it, but their attention was specifically directed to it as a part of the evidence which they might regard in the case as tending to establish the claim of respondents, leaving it to the jury, however, to say what importance they should attach to it. The instruction is selfcontradictory as the first part of it implies that such circumstance should not be considered as evidence at all, and, besides, that particular circumstance should not have been singled out for special attention, but we think that appellant was not prejudiced thereby.

[12] Appellant complains of the refusal of the court to give this proposed instruction: “When fraud or fraudulent representations made to the testator are relied on element in undue influence, it must appear not only that the representations were false and believed to be true by the testator, but that they were made the basis of importunity and mental pressure upon the testator and that the testamentary act was the result thereof, before the jury can find that there was any fraud practiced upon the testator in the making of the will."

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While the foregoing embodies a sound legal principle, it was not applicable to the case as there was no evidence of any false representations. In the absence of any evidence to that effect it surely could not be said that such representations were relied on. It is not error to refuse an instruction, which, however correct in principle, is not pertinent to any theory of the evidence.

Certain instructions as to mental soundness, given by the court, are assailed by appellant but they necd not be considered in view of our conclusion that the evidence is insufficient to support the finding upon that issue.

As to the rulings upon the admissibility of evidence we have examined all the assignments of error and while we think the ruling should have been the other way in some instances, yet we find nothing therein of sufficient gravity to demand a reversal.

As either finding would support the judgment (Estate of Baker, 176 Cal. 430 [168 Pac. 881]), and we are of the opinion that there was a sufficient showing of undue influence, the judgment is affirmed.

Plummer, J., pro tem., and Finch, 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 August 2, 1923.

(Civ. No. 4544. First Appellate District, Division Two.—June 7,

1923.]

HELEN CLAUSSEN (a Minor), Appellant, V. JOHN

NEWTON, Respondent.

ADOLPH THOMAS, Appellant, V. JOHN NEWTON,

Respondent.

[1] PROMISSORY NOTE-PAYMENT—EVIDENCE-FINDING.—In this action

on a promissory note, all the evidence and the only evidence sustained the allegations of the complaint that the note was unpaid, and the trial court's finding that the note had been fully paid was unsupported,

[2] EMPLOYER AND EMPLOYEE-COMPENSATION-JUDGMENT.-In this ac

tion to recover for services rendered by plaintiff, upon the case made by defendant, based upon the theory that plaintiff had been employed on a commission basis during the entire period, plaintiff was entitled to a judgment in some amount, and the judgment in

favor of defendant was erroneous. [3] ID.—DIVISION OF PROFITS—ACCOUNTING.—In such action, plaintiff

having proved by uncontradicted evidence that for a part of the time he was employed on a commission basis and that during the remainder of the period he was to have received fifty per cent of the profits, he was entitled to an accounting to determine the net profits, in order to ascertain whether he had received his proportionate share thereof.

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

The facts are stated in the opinion of the court.

Chalmer Munday for Appellants.

Harry I. Stafford for Respondent.

NOURSE, J.--These two cases were tried together upon the same evidence, and, though separate appeals were filed, are submitted upon the same record. [1] The first case of Helen Claussen v. John Newton was on a promissory note for $500. The trial court found that the note was executed and delivered in accordance with the allegations of the complaint. It also found that said note, together with all interest thereon, had been fully paid, and entered judgment for the defendant.

The whole attack upon this judgment is that the finding of payment is not supported by the evidence. A review of the evidence discloses that all that was offered in the case showed conclusively that the note was not paid. There was some evidence of doubtful merit that at some time during the business relations of the respondent and Adolph Thomas, the plaintiff in the second case, a payment was made by this respondent to Thomas in the sum of $1.060 on "trade acceptances and a note. There was no attempt to connect this testimony with the payment of the note in suit, and the respondent cites no evidence to sustain the finding and presents

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