EVIDENCE (Continued).

tains no specification of the insufficiency of the evidence to support such finding.-Id.

5. ESCROW INSTRUCTIONS TO ATTORNEY

PRIVILEGED COMMUNICATIONS. The escrow instructions given by the grantor in a deed are not privileged communications even though such instructions are given to a party who has theretofore, or at the time occupies the position of attorney to the grantor. (Opinion of supreme court on denial of hearing.)-Messersmith v. Smith, 446. 6. PROFESSIONAL EMPLOYMENT OF ATTORNEY HOLDING OF DEED INSTRUCTIONS.-Instructions to the holder of a deed delivered in escrow with reference to its delivery are not "in the course of the professional employment" of the attorney within the meaning of subdivision 2 of section 1880 of the Code of Civil Procedure, although the delivery be made to the grantor's attorney, but are instructions which he is bound to reveal at the request of the grantee for whose benefit the instructions are given. (Opinion of the supreme court on denial of hearing.)-Id.

7. MUNICIPAL ORDINANCE - JUDICIAL NOTICE.- Granting that the superior court can take judicial notice of the terms of a municipal ordinance as law, it cannot take such notice before the ordinance takes effect.-Vanderbush v. Board of Public Works, 771.

See Alien Land Law, 8-12; Appeal, 2, 3, 9; Assault and Battery, 1, 2; Broker's Commissions, 1, 7, 8, 11, 12, 14, 15; Claim and Delivery, 7; Contracts, 1, 5-7, 9-13, 18, 20; Conversion, 1; Corporations, 4; Criminal Law, 1-4, 6, 8, 9, 12, 14-19, 21, 25, 26, 33-35, 37, 39-41, 43-45, 51-53, 56, 62-67, 69-74, 80, 81; Deeds, 1, 2; Default, 3; Divorce, 1; Fire Insurance, 3; Injunction, 1, 5; Juvenile Court Act, 4, 5; Mandamus, 1; Mines and Mining, 1; Mortgages, 1; Negligence, 4; Newspapers, 2, 4, 5; Partnership, 3, 4; Promissory Notes, 1, 3; Quieting Title, 2, 4-9; Sales, 3, 4, 6-9; Services, 1; Specific Performance, 4; Street Law, 1; Trespass, 1; Trusts, 1, 2; Waters and Water Rights, 3, 5, 6, 10; Wills, 10-13, 16; Workmen's Compensation Act, 1.

EXCUSABLE NEGLECT. See Default, 3.

EXPENDITURES. See Licenses, 1; Quieting Title, 3.

FINDINGS. See Appeal, 7; Assault and Battery, 1; Broker's Commission, 7, 11, 20; Claim and Delivery, 7; Contracts, 5, 7, 11, 14; Corporations, 4; Criminal Law, 19; Divorce, 1; Evidence, 4; Fire Insurance, 3; Injunction, 1-3; Judgments, 4; Mechanics' Liens, 1; Mines and Mining, 1; Mortgages, 1; Partner

FINDINGS (Continued).

ship, 3, 4; Promissory Notes, 1, 3, 5; Quieting Title, 2; Sales, 3, 4, 6-8, 11; Specific Performance, 4; Trespass, 1; Trusts, 1; Waters and Water Rights, 3; Wills, 9.

FIRE INSURANCE.

1. OCCUPANCY OF BUILDING PLEADING. In an action to recover on a fire insurance policy covering a building and its contents "only while occupied for mercantile and restaurant purposes," the complaint must allege that at the time of the fire the building was used for mercantile and restaurant purposes.-Agalianos v. American Central Ins. Co., 349.

an

2. SUFFICIENCY OF COMPLAINT WAIVER OF OBJECTIONS. In action to recover on a policy of fire insurance, an allegation to the effect that from the date of the issuance of the policy down to and including the day it was destroyed by fire "plaintiff was the owner of the property. . . including the one-story frame building thereon occupied for mercantile and restaurant purposes" is suffi cient, in the absence of demurrer or other timely objection to the pleading, to show that at the time of the fire the building was occupied and used for mercantile and restaurant purposes.-Id. 3. PAYMENT OF PREMIUM

EVIDENCE FINDING. — In an action to recover on a policy of fire insurance and in which the defendant, by way of affirmative defense, pleaded the cancellation of the policy prior to the time of the fire, such defense being based upon a notice served by defendant upon plaintiff to the effect that a certain sum was due as premium and that unless such premium was paid within a specified number of days the policy would be canceled, the evidence was sufficient to justify the trial court in determining that the premium was paid by plaintiff to defendant's agent prior to the receipt of such notice and in finding that the policy was not canceled.-Id.

4. CANCELLATION

CONTINGENT UPON NONPAYMENT OF PREMIUMCONSTRUCTION OF NOTICE.-Notwithstanding a provision in a fire insurance policy giving either the insurer or the insured the right to cancel the policy at any time, without giving any specific or any reason therefor, a contingent notice by the insurer to the insured that a certain sum due as premium has not been paid and that "unless said premium be paid on or before five days from the date of service of this notice, said policy . . . will stand canceled for nonpayment of premium without further notice, and thereafter be null and void, and no liability will exist thereunder," will not effect a cancellation of the policy where the insured pays such premium within the time specified or has paid the same prior to the receipt of such notice.-Id.

5. TERMINATION

- SUFFICIENCY OF NOTICE.-Where a fire insurance policy gives the insurer the right to cancel the policy at any time,

FIRE INSURANCE (Continued).

without giving any specific or any reason therefor, a written notice that a certain sum due as premium has not been paid and that "unless said premium be paid on or before five days from the date of service of this notice, said policy . . . will stand canceled for nonpayment of premium without further notice, and thereafter be null and void, and no liability will exist thereunder," will operate, ipso facto, to cancel the policy, if the insured fails to pay the premium within the time specified. (On modification of opinion.)-Id.

FORGERY. See Criminal Law, 14.

FRAUD. See Broker's Commissions, 1, 9, 10; Vendor and Vendee, 1; Wills, 20.

GIFTS. See Quieting Title, 1-4, 6-8.

GUARANTY.

1. AGREEMENT COLLATERAL TO LEASE PURCHASE OF FURNITURE AT EXCESS COST KNOWLEDGE AND CONSENT OF LESSOR EXONERATION OF GUARANTOR. Where, in connection with a lease and guaranty, the lessor, the guarantor, and the lessee agree that the lessee is to purchase furniture necessary to furnish the leased premises, at a total price not to exceed a specified sum, and that one-half of the total purchase price, not to exceed one-half of said specified sum, is to be advanced and paid by the lessor, for and on behalf of the lessee, who is to pay the remainder of the purchase price, and it is further agreed that when the purchase price is fully paid, the lessee shall then commence the making of payments to the lessor in liquidation of the "other half" so advanced by him, and at the same time execute to the lessor a chattel mortgage thereon as security for the payment of such advancement, and also as security for the lessee's covenants in the lease, and that thereupon the guarantor, as to any rents which might thereafter accrue, should be released from liability as guarantor, such guarantor is exonerated from liability for future rentals when the lessee, with the knowledge, consent, assistance, and advice of the lessor, but without the knowledge or consent of the guarantor, purchases furniture on credit at a cost in excess of the maximum sum specified, and the lessor pays only one-half of said specified maximum sum.-Johnson v. Quinby, 137.

OBLIGORS.—

2. ACTION FOR WATER SOLD AND DELIVERED-PLEADING Where the agent of an owner of land signs an order for the delivery of water to certain persons, whom he refers to as his tenants, and such order recites, “I hereby guarantee the pay

GUARANTY (Continued).

ment thereof," such agent cannot be held as an original obligor jointly with the owner and the tenants, but only as a guarantor in an action brought upon his contract of guaranty.-Imperial Water Co. No. 4 v. Meserve, 603.

See Contracts, 7.

HABEAS CORPUS. See Intoxicating Liquors, 3.

HOMESTEADS.

1. DECLARATION UPON ATTACHED PROPERTY JUDGMENT BANKRUPTCY -CLOUD UPON TITLE.-Where the defendant, after suit brought and attachment levied, but prior to judgment, executes and records a declaration of homestead upon the attached real property and, after going through bankruptcy, secures an order in such action perpetually staying the issuing of an execution upon the judgment against him, but the plaintiff in such action asserts and claims that the said judgment is still in full force and effect, and its acts and claims have created and caused doubts as to the validity of the homestead rights of the judgment defendant and his wife in and to the homestead premises and have rendered it impossible for them to sell or mortgage the said premises, they require a decree removing that cloud from the title to their homestead property.-Price v. Central Sav. Bk. of Oakland, 583.

2. REMOVAL OF CLOUD EQUITY.-The judgment defendant having complied with the statutory requirements concerning declarations of homestead and bankruptcy, he and his wife are entitled to a decree removing the cloud from the homestead premises, notwithstanding the judgment was a just one and they have made no offer to pay it or to do equity in any way whatever.-Id.

HUSBAND AND WIFE.

COMMUNITY PROPERTY MORTGAGE - EXECUTION BY HUSBAND-VALIDITY. A mortgage on community property acquired prior to the adoption of section 172a of the Civil Code, if given for a valuable consideration, is valid, though executed by the husband alone subsequent to the adoption of said code section.-Copp v. Rives, 776.

IMPEACHMENT. See Criminal Law, 41; Evidence, 3.

INCOMPETENCY. See Wills, 9, 10, 19.

INDICTMENT. See Criminal Law, 33, 46, 47.

INFERENCES. See Wills, 10.

INJUNCTION.

1. ACTION TO PREVENT PAYMENT OF MONEY IN Settlement oF CONTROVERSY -EXISTENCE OF CONTRACT - FINDING - EVIDENCE.- In this action by certain independent water companies to enjoin an irrigation district from paying a sum of money to another water company on account of an alleged contract of settlement of a controversy with respect to the diversion and use of water from a certain river, in which action the latter company intervened, the finding of the trial court to the effect that no contract was ever entered into between said irrigation district and intervener, "or anyone on its . . . behalf," was amply supported by the evidence.-Imperial Water Co. No. 1 v. Imperial Irr. Dist., 286.

2. MATERIAL ISSUES ABSENCE OF FINDINGS-REVERSIBLE ERROR.— The failure of the trial court to find upon material issues is prejudicial error for which a new trial should ordinarily be granted; but a judgment will not be reversed on that account where, if the findings were in favor of appellant, no different judgment could be entered.—Id.

3. FAILURE TO FIND ON SUBSIDIARY ALLEGATIONS.-In such action, the trial court having found that no contractual relation ever existed as between the irrigation district and the water company, intervener, and all the other allegations having been subsidiary and dependent upon that fact so far as the complaint in intervention was concerned, it was immaterial whether the court found for or against such other allegations, or whether there was any finding whatsoever with respect thereto.-Id.

4. APPEAL REVERSAL

PREJUDICIAL ERROR. An appellant must not only show error, but he must also show that he is really harmed thereby before the appellate court will be justified in ordering a reversal of the judgment because of such error.-Id.

5. CROSS-EXAMINATION

OF WITNESSES - LACK OF PREJUDICE. In this action by certain independent water companies to enjoin an irrigation district from paying a sum of money to another water company on account of an alleged contract of settlement of a controversy with respect to the diversion and use of water from a certain stream, in which action the latter company intervened, conceding that, under the pleadings in the case and the admissions and stipulations of counsel representing respectively the plaintiffs and defendant irrigation district, plaintiffs did not have the right, under section 2055 of the Code of Civil Procedure, to examine the officers and the directors of defendant irrigation district as under cross-examination, the course pursued by the trial court in permitting such examination resulted in no prejudice to intervener.Id.