Pac. 735; Tilton v. Russek, 171 Cal. 731, | equity would be violated by at least refusing 735, 154 Pac. 860.

Without consideration of the other attacks made upon the validity of the tax sale, we are satisfied that this plain disregard of section 3746 of the Political Code as to the date upon which tax delinquency occurs vitiated all the subsequent proceedings, and that the tax sale and certificate made and issued before there was any tax delinquency in law rendered them void.

him interest.

The judgment and order appealed from are affirmed.

We concur: MELVIN, J.; WILBUR, J.

(178 Cal. 812)
CALIFORNIA MIDLAND RY. CO. v.
SMITH, Marshal, et al.
MARTIN v. SAME.

(Sac. 2575, 2576.)

[6, 7] Appellant contends that the tender made by respondent was insufficient; but, as the tax sale and certificate were void, plain- (Supreme Court of California. Sept. 5, 1918.)

tiff was not required to make any tender to defendant at all. All defendant was entitled to was to be reimbursed for the moneys he had paid out in purchasing the property at the sale when an action was brought by the

owner to set aside the tax certificate and

deed. He complains also because the court did not allow him, in addition to the amount paid as the actual price, $641.91, interest on that amount, and also 50 per cent. penalty added thereto. But the penalty could only be collected upon redemption from a valid sale. Here defendant was offered that amount in an effort to redeem, although the tax sale was void; but defendant refused to accept it. When plaintiff was compelled to sue to remove the cloud upon his title, the defendant, as a matter of equity, was only entitled to be reimbursed for what he had actually paid out as the purchase price and whatever subsequent taxes he had paid and interest thereon. Holland v. Hotchkiss, 162 Cal. 366, 123 Pac. 258, L. R. A. 1915C, 492. What he had actually paid out was $641.91. Ordinarily the purchaser would be entitled to interest on that amount, and the judgment here might be modified by ordering it allowed by the court below; but we do not think that under the circumstances disclosed here we will disturb the judgment even by a modification. The trial court doubtless took the view that as the defendant refused to take more than he was entitled to when plaintiff offered to redeem from the illegal sale and put him to the trouble, annoyance, and expense of bringing an action, no rule of

STIPULATIONS 14(5)-ABIDING RESULT OF
OTHER CASE.

Where parties to appeal stipulate decision in companion case shall control and judgment and order involved in such case are affirmed, judgment and orders involved in appeal will be

affirmed.

Department 2. Appeal from Superior Court, Yuba County; Eugene P. McDaniel, Judge.

Actions by the California Midland Railway Company and by John Martin against Chester A. Smith, Marshal and ex officio Tax Collector of the City of Marysville, and Waldo S. Johnson. From judgments for plaintiffs, and orders denying his motions for new trial, defendant Johnson appeals. Affirmed.

and W. E. Davies, of Marysville, for appelDowney, Pullen & Downey, of Sacramento, lant. W. H. Carlin, of Marysville, for respondent.

PER CURIAM. By stipulation of the parties in the above two causes, it is agreed that the decision in the case of Marysville Woolen Mills, Plaintiff and Respondent, v. Chester A. Smith, Marshal and ex officio Tax Collector of the City of Marysville and Waldo S. Johnson, Defendants and Appellant, Sac. No. 2574, 175 Pac. 13, shall govern and control the disposition of said two appeals; and, the judgment and order of the trial court in said latter case having this day been affirmed, it is hereby ordered that the judgment and the orders denying motions for a new trial, given and made by the trial court in each of the above-entitled actions, be and the same are hereby affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(37 Cal. App. 811)

PEOPLE v. TINNEY et al. (Cr. 605.) (District Court of Appeal, Second District, California. July 29, 1918.) INTOXICATING LIQUORS 143 KEEPING PLACE-CLub.

Where members of Loyal Order of Moose in no-license territory, desiring liquor, notified steward, who ordered from wholesaler, liquor being shipped to and charged to club, and upon arrival distributed among members and kept either in locker used in common or in refrigerator indiscriminately until served by steward, the club, and its chairman of house committee and steward as its agents, were acting in violation of Wylie Local Option Act, § 14, prohibiting keeping, etc., of place within no-license territory where alcoholic liquor is sold, served,

or distributed.

Appeal from Superior Court, Imperial County; Z. B. West, Judge.

George A. Tinney and R. F. McCombs were convicted of violating Wylie Local Option Act, § 14, and they appeal. Affirmed.

Ault & Chase (Dan V. Noland, of El Centro, of counsel), for appellants. U. S. Webb, Atty. Gen., Joseph L. Lewinsohn, Deputy Atty. Gen., and Jerry H. Powell, of Los Angeles, for the People.

SHAW, J. Defendants, alleged to be acting as agents of the Loyal Order of Moose in the city of Calexico, were convicted of the violation of section 14 of what is known as the "Wylie Local Option Act," which provides that:

"It shall be unlawful for any person, corporation, firm, company, association or club, within any no-license territory, to keep, conduct or establish, as principal or agent, any place where alcoholic liquors are sold, served or distributed, or are kept for the purpose of sale or distribution, except as provided in section 16 hereSt. 1911, p. 599.

of. *

It appears without contradiction from the evidence that in the city of Calexico, which

I charge therefor, not against the member for whom it is claimed it was purchased, but against the lodge, which paid the seller therefor. Having thus purchased the liquor, it was, upon delivery to the lodge at these clubrooms, distributed and served to the members, according to the kind and quantity ordered, and from whom payment therefor was collected by the lodge in accordance with statements rendered therefor. As desired, the beverage so acquired by a member, and which he kept either in a locker used in common with other members, or placed indiscriminately with that of others in a refrigerator for cooling, was served to him by McCombs who, as custodian of the rooms, was paid a salary for his services by the lodge.

The contention of defendants is that such

liquors as those served did not belong to
the lodge, nor to defendants, or either of
them, but that they were purchased and own-
ed by the members of the lodge, who kept
lockers and receptacles wherein the same
were placed for the individual use of members
who had purchased the same, and since, as
held in People v. Winkler, 174 Cal. 133, 162
Pac. 109, the statute does not prohibit one
in dry territory from purchasing intoxicat-
ing liquors outside of such territory and
bringing them within such no-license territo-
ry for his own consumption, it was likewise
permissible for the individual members of
the lodge to employ the lodge or defendants
as their agents to make such purchase and
delivery, serve and distribute the liquors to
So claiming, they
them at the clubrooms.
contend that the court erred in refusing to
instruct the jury to the effect that they
should acquit defendants if they found that
in the purchase and delivery of such liq-
uors they acted as agents of the owners

thereof who used it on the premises.

was "no-license territory," there existed a The prosecution in the Winkler Case was lodge of a fraternal order known as Loyal Order of Moose, No. 1623, which, for the under section 13 of the act, which makes it use of its members, maintained in the rooms unlawful to sell, furnish, distribute, or give of a building separate from the meeting away, within the boundaries of no-license place of the lodge certain clubrooms, which territory, any alcoholic liquors, except L certain cases. The prosecution here had was were in the immediate charge of what was known as a house committee of which Tin- under section 14 of the act, which makes it ney, the dictator of the lodge, was chairman, an offense to keep, conduct, or establish a and wherein McCombs was employed as cus- place where alcoholic liquors are sold, servtodian or steward. In the rear of one of ed, or distributed, except as provided for in the rooms there was kept a long counter or section 16 of the act, under which one is bar, back of which was another bar upon permitted to serve liquors at his own home which, on the night defendants were arrest- to members of his family or to guests as an ed, were numerous open bottles of liquor of act of hospitality. No claim, however, is various kinds, and hanging from the bar a made that these clubrooms constituted the government liquor license issued to the lodge. home of the members of the lodge. MoreIn the rooms at the time were found some over, in the Winkler Case, wherein it was seven barrels of whisky, wine, and beer. The held that an agent was not guilty of a vioevidence further conclusively shows that it lation of the law in acting as the agent of was the practice for members desiring liq- another in the purchase of alcoholic liquors uor to notify McCombs, who would order the in license territory and bringing them within same from some wholesale liquor house, no-license territory, the transaction was had which shipped it to the lodge, making a with the principal himself, who was the pur

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Superior Court, Stanislaus County: W. H. Langdon, Judge.

Action by G. Nelligan and M. F. Nelligan, a copartnership, doing business under the firm name of Nelligan & Son, against K. Knutsen. Judgment for plaintiffs, and defendant appeals. Affirmed.

chaser of the beverage in no-license territory. Not so, however, in this case, since it appears that the transaction, wherein the liquors were acquired outside of the city of Calexico was one had between the seller and the lodge, which made the purchase and thereafter sold the liquors to members of the lodge, in kind and quantity as ordered. W. N. Graybiel, of Turlock, and E. H. The fact that such sales were by the bot-Zion, of Modesto, for appellant. R. R. FowlSan Francisco, for respondents. er, of Turlock, and James L. Crittenden, of

tle or barrel makes it none the less an of

That

HART, J. The complaint alleges: plaintiffs are partners under the firm name and style of Nelligan & Son, doing business in the city of Santa Rosa, and that defend

fense than if it had been sold by the drink. There was no privity of contract between the member acquiring liquor and the wholesale house in license territory which sold it to the lodge. Such house did not look to the member for payment, and there was no privity of contract between the two. The mem-ant is a resident of the county of Stanislaus; bers looked to the lodge in supplying them with liquor, and the lodge, having received orders therefor, purchased such liquor from outside territory, and sold, distributed, and served it to the members, thus bringing itself and defendants as its agents within the terms of section 14 of the statute, which prohibits such business. Clearly, this clubroom was a place established and conducted by defendants as agents of the lodge for the sale, distribution, and service of alcoholic liquors. The entire scheme was a subterfuge, calculated to evade the plain provisions of the law, and for this court to give countenance to the practice concededly carried on would nullify the law, both in letter and spirit. The judgment is affirmed.

that on or about the 11th day of September, 1916, a written contract was entered into between the parties hereto by which plaintiffs agreed to purchase from defendant and defendant agreed to sell to plaintiffs 4,500 sacks of No. 1 white Egytian corn for the sum of $32.50 per ton; that, in accordance with said contract, defendant has delivered to plaintiffs 2,250 sacks, and that 2,250 sacks remain undelivered; that on or about February 19, 1917, plaintiffs demanded the delivery of said corn, but that defendant has failed and refused to deliver the same; that on said date, "and within such period thereafter as would have sufficed for the plaintiffs to purchase the same quantity of Egyptian corn of like quality and kind as specified in said contract, the plaintiffs would have been

We concur: CONREY, P. J.; JAMES, J. compelled to pay in the market where de

(38 Cal. App. 1)

NELLIGAN et al. v. KNUTSEN. (Civ. 1813.) (District Court of Appeal, Third District, California. July 29, 1918. Rehearing Denied Aug. 29, 1918; Denied by Supreme Court Sept. 27, 1918.)

1. SALES 417-BUYERS' ACTION-IMPOSSIBILITY OF PERFORMANCE-SUFFICIENCY OF EVIDENCE.

In buyers' action for breach of contract to sell white Egyptian corn, evidence held insufficient to show seller was prevented from fulfilling his contract by the destruction of the corn contracted to be delivered.

livery of said Egyptian corn was to have been made according to the terms of said contract, to wit, on board cars at Turlock, than the price for which the defendant promStanislaus county, the sum of $942 more ised and agreed to sell said Egyptian corn to plaintiffs," and that on said day, or within a short time thereafter, plaintiffs could have obtained for said corn the sum of $1,305 "more than the price for which the defendant promised and agreed to sell said corn to plaintiffs." Judgment in the sum of $1,305 was prayed for.

The answer admits the execution of the

2. SALES 172 – AGREEMENT TO SELL-IM-contract and the delivery of 2,250 sacks of POSSIBILITY OF PERFORMANCE-LIABILITY OF SELLER.

Where seller made unconditional agreement to sell specified amount of corn of certain grade, expecting to procure the corn from certain growers, the impossibility of obtaining the corn from such source will not excuse nonperformance. 3. SALES 179(4)—AGREEMENT TO SELLACCEPTANCE OF INFERIOR GRADE-WAIVER. Where seller agreed to sell 4,500 sacks of No. 1 white Egyptian corn, buyers' acceptance of corn of inferior quality constituted a waiver of the defects in the quality. 4. SALES 417 BUYERS' ACTION FOR BREACH OF CONTRACT-SUFFICIENCY OF EVIDENCE.

In buyers' action for damages for failure to deliver, evidence held to sustain verdict of $850 for buyers.

corn, but denies that defendant failed or refused to deliver to plaintiffs the balance of the corn; admits demand for the delivery of the balance; denies the allegation of the complaint that plaintiffs, had they purchased corn at Turlock, would have been compelled to pay $942 more than the price agreed upon in the contract, and denies that plaintiffs have sustained any loss. The answer then alleges that at the time of the execution of the contract referred to "plaintiffs understood that the corn which said defendant had

agreed thereby to deliver to said plaintiffs was corn which was contracted to be de livered by several different persons who were

growers of the same; that without any fault mentioned the association bought between or neglect on the part of this defendant" he 200 and 400 tons of Egyptian corn No. 1 in has received from said growers only the and about Turlock. 2,250 sacks which he delivered; that there [2] The above state of facts brings the case was an agreement by plaintiffs that 600 sacks within the rule, stated in Pearson v. McKinmight be released from delivery by defend- ney, 160 Cal. 649, 654, 117 Pac. 919, 921: ant; that before the corn contracted for was "Where one makes an unqualified agreement harvested there were heavy rainstorms, and to sell goods to be delivered at a fixed time, or on demand of the buyer within a stated period, "that nearly all Egyptian corn that could and it is inherently possible to obtain the goods, be obtained was colored and mouldy by rea- the fact that the seller may have expected to son of having been rained upon in the fall; manufacture the goods himself, or to procure that by reason of the rains aforesaid defend them from a certain source, and has not been able to complete or obtain them when delivery ant could not obtain No. 1 white Egyptian is due, does not excuse performance. in that corn as specified in said agreement"; that event, his contract being unconditional and unin December, 1916, defendant shipped a car-qualified, he must go into the market if necesload of corn to the plaintiffs, who rejected sary and obtain the goods, and he will be liable in damages for non delivery." 100 sacks thereof as not being No. 1 white Egyptian corn; that plaintiffs refused to receive corn from defendant between the 12th of December, 1916, and the first of the year 1917, by reason of which "defendant was deprived and prevented while the price was low, namely, the price of $33 per ton, from buying corn outside of that which he had contracted from the growers."

"The appellant and defendant relies as a first defense on the fact that the appellant was prevented from fulfilling his contract by destruction of the thing to be delivered, and in connection with that the court erred in refusing to allow the defendant to introduce samples of the corn that was in dispute; and for a second defense the appellant contends that if he were not released by impossibility of performance that all the plaintiffs and respondents could recover would be the sum of fifty cents a ton, the difference between the contract price of $32.50 and that of $33, the price that corn of like quality to that which they had accepted could be bought for in the open market at Turlock."

Under the last contention it is claimed that $50.75 is the greatest amount of damages plaintiffs could recover, being 50 cents per ton for 1411⁄2 tons, or 2,250 sacks.

Appellant cites the case of Mineral Land Park Co. v. Howard, 172 Cal. 289, 156 Pac.

458, L. R. A. 1916F, 1, wherein it was held, as stated in the syllabus:

"Where performance depends upon the existence of a given thing, and such existence was assumed as the basis of the agreement, performance is excused to the extent that the thing ceases to exist or turns out to be nonexistent."

But in the case at bar the jury was justified in finding that the corn, the subject of the agreement, had not ceased to exist, and that defendant could have performed his contract. See cases cited in 2 Bechem on Sales, § 1103.

It is contended by appellant that there was no "No. 1 white Egyptian corn" in or about Turlock during the time covered by the contract in question, and he refers to the testimony of H. G. Thompson, a grain broker, who stated that there was no No. 1 corn in the year 1916; that corn was rated as No. 1 1916 corn; "we had a grade this year that we called 'season's average' corn, and that is the term that we usually used, and you could not specify absolutely No. 1 or No. 2 corn; we simply had to describe it as best we could as being nearly season's average."

From a letter dated December 12, 1916, written by plaintiffs to defendant, it appeared that plaintiffs had rejected 100 sacks of corn from a carload shipment because it was [1] 1. Appellant's contention that he was "mouldy corn." It is further stated therein: prevented from fulfilling his contract by rea- "We would prefer to have less corn than son of the destruction of the corn contracted the contract calls for than to have mouldy to be delivered is not borne out by the facts corn mixed with it." It appeared from the as disclosed by the evidence. The contract testimony of Morris F. Nelligan, one of the was entered into in September, 1916, and plaintiffs, that the mouldy corn complained thereafter there were heavy rains which of was not part of that covered by the concaused some damage to the crop. Never-tract in question, but was sold by defendant theless, defendant was able to deliver to to plaintiffs for $40 per ton. plaintiffs 2,250 sacks, which were accepted [3] Plaintiffs accepted all the corn offered by plaintiffs as complying with the require- them by defendant except the 100 sacks above ments of the contract as to quality and referred to and those were rejected because grade. The witness Brooks, manager of the of being mouldy. If, as stated by the witTurlock Merchants' & Growers' Association, ness Thompson, there was no No. 1 corn, testified that "there was plenty of corn of- but that corn "was rated as No. 1 1916 corn," fered us to purchase at that time (between and if corn so rated had been accepted by January 8 and February 26, 1917, upon plaintiffs, it must be assumed that they which latter date the complaint in this ac- would continue to accept a similar grade of tion was filed), and we purchased considera- corn from defendant until his contract was ble." He estimated that between the dates | fulfilled. And if plaintiffs accepted corn that

was inferior in quality to that called for by | ton. He said that plaintiffs, relying upon the terms of the contract, such acceptance the promise of defendant to furnish corn, constituted a waiver of the defect in the quality. Jackson v. Porter Land & Water Co., 151 Cal. 32, 90 Pac. 122.

The objection was sustained and this rul- was a general slump in the market during ing is complained of as erroneous.