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PARTNERSHIP (Continued).

claim of fraud made against the partner payee of the notes, and do error alleged or shown tainting the whole accounts found to have been mutually settled; and the plaintiff is entitled to rely upon the amount of the notes and upon the resulting inference that the maker's indebtedness should be measured by the sums stated in those notes, subject only to the right of the maker to prove, if he can, any errors which crept into the settlements by reason of mistakes which had prevented any items from being taken into consideration when the agreements of settlement were made; and the burden of proof rests upon him to establish the facts by reason of which he would be entitled to the deductions,

First Nat. Bank v. Stansbury, 336. 2. STIPULATION FOR REFERENCE-SCOPE OF EXAMINATION OF ACCOUNTS.

In such action, the stipulation of the parties for the appointment of a referee to take an accounting between the former partners as to correctness of all purported settlements had between them up to and including the giving of the notes, with the further stipulation that the pleadings might be so amended as to permit the introduction of such further evidence as might be developed by the report of the referee from said accounting, did not authorize the court to entirely disregard the notes sued upon and enter into

an accounting of the entire matter de novo.-Id. 3. DISSOLUTION ACCOUNTING - SALE OF INTEREST TO COPARTNER

CONFLICTING EVIDENCE-FINDINGS--APPEAL.-In an action for the dissolution of a partnership and for an accounting, in which the defendant pleads that prior to defendant's sale of the business to a third party plaintiff sold his interest in the business to defendant for a specified consideration, the sale to defendant being evidenced by a bill of sale which is pleaded in haec verba, where the trial court finds on conflicting evidence that the bill of sale was not intended as an absolute transfer but was given by plaintiff to defendant for the purpose of enabling defendant to consummate a sale of the business for and on account of the partnership, and that at the time of sale the said business belonged to plaintiff and defendant in equal shares as copartners, such findings will not be interfered with by the appellate court.-Briggs v. PARTNERSHIP (Continued).

Kosich, 402. 4. CONSIDERATION FOR BILL OF SALE-ERRONEOUS FINDING-APPEAL.

In such an action, the trial court having determined that the bill of sale was not intended as an absolute transfer but was given defendant to enable him to effect a transfer of the business for and on

account of the partnership, the judgment of the trial court in favor of plaintiff will not be reversed on appeal because of any error in the findings as to consideration for the bill of sale, there being no contencion that in making the accounting the trial

court failed to give defendant credit for all expenditures made

by him on behalf of the partnership.-10. 5. FILING OF CERTIFICATE UNDER SECTION 2466, CIVIL CODE-TIME.

Although the certificate required by section 2466 of the Civil Code, as to persons doing business under a fictitious name, is not filed at the time of the filing of the action or at the time the answer is filed, it is sufficient if it be filed prior to the trial of the action.-Goodman V. Anglo-California Trust Co., 702.

PAYMENT. See Broker's Commissions, 7; Mechanics' Liens, 1; Plead.

ing, 11; Promissory Notes, 1, 4, 5; Statute of Frauds, 1.

PERFORMANCE. See Contracts, 11, 15.

PERJURY. See Criminal Law, 66.

PERSONAL INJURIES. See Negligence.

PLACE OF TRIAL. 1. STIPULATION OF PARTIES TO CHANGE WHEN EFFECTIVE.—In the

event parties to an action stipulate that the place of trial of the action may be changed to a different county, their stipulation will have no force or effect unless the trial court sees fit to make an order changing the place of trial in accordance with the stipulation; in other words, parties to litigation may not as of right stipulate away the jurisdiction of any court.-General Motors

Accept. Corp. v. Codiga, 117. 2. COVENANT IN PROMISSORY NOTE-JURISDICTION—WAIVER.-A cove

nant in a promissory note authorizing, "irrevocably, any attorney at law, to appear” for the maker of the note "in any court of record in the United States and waive the issue and service of process and confess a judgment against" the maker “in favor of the holder ... for such amount as may appear to be unpaid," does not give the holder of such note the right to the trial of an action thereon in any court of competent jurisdiction or deprive the maker of his statutory right to change the place of trial to

a different county.-Id. 3. STIPULATION OF PARTIES.-Order denying motion to change place

of trial reversed on authority of General Motors Acceptance Corp. v. Codiga, ante, p. 117.-General Motors Acceptance Corp. v. Par. ker, 797.

PLEADING.
1. DAMAGES MISTAKEN RULE.—Where the facts stated in a

plaint show that the plaintiff is entitled to damages of some sort,

com

PLEADING (Continued).

it is not a fatal error that the pleader has mistaken the rule by

which such damages should be determined.—Warfield v. Basso, 47. 2. PRAYER—JURISDICTION. — Jurisdiction of the superior court is de

termined by the amount for which judgment, in good faith, is

demanded in the complaint.-Id. 3. STATUTE OF FRAUDS — WRITTEN CONTRACT — PRESUMPTION.-In an

action on a contract required by the statute of frauds to be in writing, the presumption is that the contract is in writing, and there is no necessity for an allegation in the complaint to that

effect.-Id. 4. WAIVER OF ERROR. — Error of the trial court in sustaining a de

murrer or in striking out portions of a first amended answer is waived by the filing of a second amended answer and going to

trial upon the issue raised thereby.-Bossen v. Bean, 293. 5. QUIETING TITLE-TENANCY IN COMMON-PARTIES.—The administra

trix of an estate, as a tenant in common in real property, is entitled to sue either jointly or severally for the protection of her

interest therein.-Messersmith v. Smith, 446. 6. AMENDMENT OF ANSWER—CONFORMANCE TO PROOF.-The denial of

a motion to amend an answer so as to make it conform to the evidence is not an abuse of discretion where the matter sought to be alleged, if material, could have been presented to the trial

court without amendment.--Pinque v. J. B. Hill Co., 457. 7. CROSS-COMPLAINT — MISTAKE - DEFAULT AMENDMENT TERMS.

Where a cross-complaint for damages for failure to deliver rice contains an error in the quantity of rice agreed to be delivered (due to the use of the word “pounds" instead of tons") and the plaintiffs fail to file an answer thereto, the trial court acts within its discretion in denying defendant's application, made at the time of trial, to correct the error in its pleading where defendant refuses to consent to the setting aside of plaintiffs' default.

Poulsen v. Central Com. Co., 482. 8. DEFAULT_CONSTRUCTION OF PLEADINGJUDGMENT.—In such action,

defendant having refused to amend its cross-complaint upon the terms imposed by the court, it was entitled, upon the default of the plaintiffs, to a judgment against them based upon its plead

ing construed most strongly against it.-Id. 9. SUFFICIENCY OF CROSS-COMPLAINT. — A cross-complaint must allege

not only all the facts necessary to constitute a cause of action, but also all facts essential to show that the demand is a proper subject for cross-complaint.-Imperial Water Co. No. 4 v. Me

serve, 593,

10. DENIAL OF LANDLORD'S TITLE-NOTICE TO QUIT.-A tenant who de

nies his landlord's title cannot claim a right to any notice to quit. Wedderien v. Wood, 628.

PLEADING (Continued).
11. NONPAYMENT—BURDEN OF PROOF.-In an action upon a common

count for labor performed and material furnished, while the plain.
tiff is required to plead nonpayment, he is not required to prove
such averment.-Cornwell v. Mulcahy, 658.
See Alien Land Law, 1-4; Broker's Commissions, 20; Corpora-

tions, 10; Criminal Law, 5; Fire Insurance, 1, 2; Intoxicating
Liquor, 2, 3; Judgments, 3; Juvenile Court Act, 1-3; Land-
lord and Tenant, 3; Mandamus, 1-3; Mortgages, 1; Negli-
gence, 1-3; Newspapers, 6; Promissory Notes, 4; Sales, 5, 10;
Specific Performance, 3; Waters and Water Rights, 1, 2, 7, 8,
11; Wills, 15.

PLEAS. See Criminal Law, 78, 79.

POSSESSION. See Claim and Delivery, 1-3, 5, 6; Liens, 4, 5; Ven.

dor and Vendee, 7.

PRESUMPTIONS. See Agency, 2; Alien Land Law, 5, 6, 7, 10; Ap

peal, 8, 11; Claim and Delivery, 6; Contracts, 6; Judgments, 2; Mortgages, 3; Pleading, 3; Wills, 9.

PRINCIPAL AND AGENT. See Agency.

PRIVILEGED COMMUNICATIONS. See Deeds, 1; Evidence, 5, 6.

PROHIBITION.
SALE BY RECEIVER IN FORECLOSURE PROCEEDING-APPEALABLE ORDER.

An order authorizing the receiver appointed in a proceeding to
foreclose a deed of trust and a mortgage to sell certain property
and businesses of the mortgagor (the grantor in the deed of
trust) is an appealable order; and that remedy being plain,
speedy, and adequate, a writ of prohibition will not issue to re-
strain the execution of such order.—Leeper v. Superior Court, 736.

See Intoxicating Liquors, 2.

PROMISSORY NOTES. 1. 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.

Claussen v. Newton, 435. 2. DEATH OF PAYEE AND MAKER — DISQUALIFICATION OF HUSBAND OF

PAYEE AS WITNESS.-In an action on a promissory note by the administrator of the estate of the deceased payee against the executor of the will of the deceased maker thereof, after rejection

62 Cal. App.-55

In an

PROMISSORY NOTES (Continued).

of a claim based upon such note, the surviving husband of the deceased payee of the note is disqualified, under subdivision 3 of section 1880 of the Code of Civil Procedure, from testifying con. cerning matters connected with the transaction but occurring prior

to the maker's death.—Dennis v. Brown, 439. 3. DELIVERY - CONSIDERATION—EVIDENCE-FINDINGS.-In such an ac

tion, where there is some evidence to justify a finding that the note was not delivered and that there was no consideration there. for, this is sufficient to justify such a finding, even though there is

also sufficient evidence to support a finding to the contrary.-Id. 4. NONPAYMENT PLEADING - DEFECT CURED BY ANSWER.

action on a promissory note, error of the trial court in overruling defendant's demurrer to the complaint on the ground of the uncertainty and ambiguity of the allegations as to nonpayment will not warrant a reversal of the judgment in plaintiff's favor after a trial upon the merits where, after the trial court overruled the demurrer, defendant answered admitting the execution of the note but denying that she had failed to pay the

same.—Duke v. Thornbury, 505. 5. PAYMENTS - FINDINGS—JUDGMENT — APPEAL.—Where the findings

in such action recite that no evidence was offered by defendant at the trial and it is found that “no part of said promissory note, principal or interest, has been paid, except” a specified sum "on account of interest” and credit is given for that amount, and the appeal from the judgment in favor of plaintiff for the balance is upon the judgment-roll alone, defendant cannot successfully contend that the trial court committed prejudicial error in failing to specifically find whether or not plaintiff received any payments upon the note of a third person and which was held by plaintiff as collateral security for the note executed by defendant.-Id.

See Place of Trial, 2.

PUBLIC POLICY. See Divorce, 6.

PUBLIC UTILITIES. 1. WATER DISTRIBUTING SYSTEM — ACQUISITION BY MUNICIPALITY.

Under the Public Utilities Act of 1913, a municipality may acquire an existing, privately owned water distributing system and assess the cost thereof against the real property within the assessment district established.--Santa Clara Valley L. Co. .

Meehan, 531. 2. ASSESSMENT OF COST AGAINST REAL PROPERTY CONSTITUTIONAL

LAW.—The Public Utilities Act of 1913 is not void upon constitutional grounds governing taxation because of the provision

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