that there was also due and payable to said plaintiff interest at seven per cent per annum figured upon each invoice of said merchandise beginning after the lapse of thirty days from the delivery of the same down to the date of judgment, said interest aggregating the sum of $2,026, the total aggregate of said sums due with interest as thus computed amounting to the sum of $9,335, for which sum judgment was ordered and entered in the plaintiff's favor. This appeal is from said judgment.

[1] The only serious contention which the appellant makes upon this appeal relates to the allowance of interest. The appellant predicates this contention upon the fact that the plaintiff in its original complaint and upon the former trial of the cause was insisting upon the recovery of a larger sum than that which would have been due under the original contract of the parties, relying upon the subsequent agreement for an increase in the price of labels. This, according to the appellant's contention upon this appeal, rendered the balance due the plaintiff uncertain until the date of the second judgment rendered in the action. There is no semblance of merit in this contention, since it is not only at variance with the defendant's own position and claim that its conceded liability arose and at all times existed, under the express terms of the original written agreement pleaded in its original answer and set forth in full as an exhibit to its amended answer, but it is also at variance with the findings of the court upon the second. trial of the action that the rights and liabilities of the parties were fixed by the terms of said original agreement in writing. It being thus the fact that the plaintiff's rights and the amount of its recovery of both principal and interest were fixed as the defendant always heretofore contended, and as the trial court finally found, by the terms of said express contract, the first clause of section 1917 of the Civil Code as it existed prior to November 5, 1918, and the provisions of the initiative law relating to interest which became effective on said last named date, had full application to the plaintiff's right to interest upon the principal sum payable under the terms of said contract after the same fell due. The amount of interest to which the one party is entitled or for which the other is bound is not determinable by the misconceptions of the parties

as to their rights or duties under the terms of their express contract, but by the terms of the contract itself as finally interpreted by the court. By the terms of this contract the defendant was bound to pay plaintiff the amount due upon his delivery as specified therein within a stated time after such delivery had been made and interest began to run upon such deferred payments under the foregoing provisions of the law relating to interest from the date they became due. [2] The only way in which the defendant could have avoided or terminated his liability to pay interest under his said agreement would have been to have made a tender of payment of the whole amount of principal and interest due up to the date of such tender. (Sutherland on Damages, 4th ed., sec. 266; Wadleigh v. Phelps, 149 Cal. 627 [87 Pac. 93].) The defendant made no such tender at any stage of the case and he was not excused from doing so by the mere fact that the plaintiff was demanding a much larger sum than was actually due, since the defendant's right and duty in that regard are defined by the provisions of sections 1500 and 1504 of the Civil Code and are not measured by the plaintiff's insistence as to the amount which it claims to be due. (Robinson v. American Fish Co., 17 Cal. App. 212-220 [119 Pac. 388]; Fairchild v. Bay Point etc. Ry. Co., 22 Cal. App. 328 [134 Pac. 338]; Brazil v. Azevedo, 32 Cal. App. 364 [62 Pac. 1049].)

There is no other point made by the appellant deserving of serious consideration.

The judgment is affirmed.

Tyler, P. J., and St. Sure, J., concurred.

[Crim. No. 674. Third Appellate District.-June 25, 1923.]

THE PEOPLE, Respondent, v. KENNETH BURCHAM, Appellant.

[1] CRIMINAL LAW-PERJURY VERDICT INSUFFICIENT EVIDENCE.— In this prosecution for perjury under an indictment which was in three counts, the evidence, measured by the requirements of section 1103a of the Penal Code that "perjury must be proven by the testimony of two witnesses, or of one witness and corroborating circumstances," was wholly insufficient to support the verdict of guilty as to any count.

[2] ID.-SEVERAL WITNESSES-ABSENCE OF CORROBORATION.-One of the counts of the indictment charging perjury having been basel upon the testimony of the defendant in a previous trial to the effect that on a certain day he made certain purchases in a given store, the testimony of the clerks and the proprietors of such store to the effect that they had no recollection of making such sales to defendant on the day mentioned must, within the meaning of section 1103a of the Penal Code, be regarded as one witness, where the testimony of any one of said witnesses was not corroborative of the testimony of any other.

APPEAL from a judgment of the Superior Court of Humboldt County. Denver Sevier, Judge. Reversed.

The facts are stated in the opinion of the court.

Metzler & Mitchell for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

HART, J.-The defendant was charged by an indictment found and returned by the grand jury of Humboldt County with the crime of perjury and was subsequently tried on said indictment in the superior court of said county. The indictment was in three counts and the jury found him guilty on each count.

He appeals from the judgment and the order denying him a new trial.

1. Number of witnesses and corroborative evidence necessary to support conviction for perjury, note, 6 Ann. Cas. 812.

The indictment charges that the alleged perjury was committed by the defendant as a witness in a criminal action tried in the superior court of Humboldt County and in which one Lawrence Mahach and Marion Rube were charged with the crime of robbery committed in said county on the third day of May, 1922.

It appears that in the forenoon of Wednesday, the third day of May, 1922, and during business hours, the Bank of Fortuna, situated in the town of Fortuna, in Humboldt County, was entered by a bandit and in the presence of Fred P. Newell, an officer of said bank, said bandit forcibly took from said bank the sum of $18,000. About the time that the robbery was being perpetrated a young man, a student of the high school of Fortuna, was approaching the bank, having been sent there to procure some change for the principal of the school. He saw an Oldsmobile car standing in front of the bank. As he neared the car a man emerged from the bank carrying with both hands a large sack which appeared to be filled with some article that was heavy and cumbersome. This man stepped to the front of the car and threw the sack in the front part thereof or in front of the seat next to which the driver sits when operating an automobile. This young man stated that, although the curtains of the car were drawn, he was able to observe at least one and he thought two men sitting in the back of the car. Immediately upon throwing the sack into the car, the party jumped in and started the machine at a rapid rate around the corner of the street and the car disappeared from sight. Within a short time thereafter several of the employees of the bank rushed out to the sidewalk and exclaimed that the bank had been robbed. At the trial of Mahach and Rube the young man testified to these circumstances and also stated that, although the face of the man who carried the sack from the bank to the automobile was thickly covered. with what seemed to him to be white powder and rouge, he was, nevertheless, able to and did positively identify Rube as that party. Subsequently to the commission of the robbery, said Lawrence Mahach and Marion Rube were arrested and charged with the commission of said robbery.

On the twenty-ninth day of April, 1922, one O. J. Pidgcon, the owner of a garage in the city of Eureka, Hum

boldt County, just before the hour of 8 o'clock P. M., parked his Oldsmobile car in front of the Elks Building in said city and thereupon went to the Elks Hall to attend a meeting of the lodge and a banquet to be later given that evening under the auspices of said organization. When he returned from the Elks Hall to the sidewalk where he had parked his machine he found that it was missing. On the 30th of April, in the forenoon, a machine, which bore the description of Pidgeon's Oldsmobile, was seen traveling at a rapid rate of speed over a road leading from the town of Pepperwood, which is about thirty miles. from the city of Eureka, and going in the direction of the town of Scotia, in Humboldt County. Later in the day an Oldsmobile of the same description was seen parked in the woods near Pepperwood about one hundred yards from the highway. No one was seen about the car at the time and the engine was "dead." Parties going through the woods and who had seen the car earlier on the 30th of April again passed the same spot later in the day and observed that the machine had been taken away.

On Thursday following the day of the robbery Pidgeon recovered his car, it having been left in the town of Fortuna, where the robbery occurred. The car had been roughly used. It was covered with dust and dirt and the insulation had burned out and the machine could not be operated without the repair of the insulation and other parts of the machinery thereof.

The description of the Oldsmobile seen in the woods near Pepperwood and the car seen by the young man near the Fortuna Bank at the time of the robbery and into which Rube threw the sack tallied with that of the Oldsmobile stolen from Pidgeon.

The theory of the prosecution was, and the people directed their proof to the support of that theory in said case of People v. Mahach and Rube, 60 Cal. App. 635 [213 Pac. 539], that the said parties stole the machine of Pidgeon and that they used the car for the purpose of carrying out the scheme which evidently they had conceived to rob the Bank of Fortuna. The evidence presented by the people disclosed circumstances from which the jury could well have concluded that said theory was well founded.