to invade the property bodies of fire fighters were used in preserving its timber from destruction. It is conceded that the defendant paid the taxes assessed against the property during all these years. The lands, as we have seen, were timber lands. The defendant, who was thus the occupant of said lands, was a lumber company, and the ordinary and eventual use to which said lands were to be put was that of the cutting, logging, and milling of the timber thereon; and this being so, we think the possession of the defendant, as indicated by its foregoing assertion of control over said property, based as it was upon a claim of title founded upon a written instrument, was sufficient to constitute

period under subdivision 3 of section 323, of the Code of Civil Procedure. Coryell v. Cain, 16 Cal. 567; Wolf v. Baldwin, 19 Cal. 306;

was interested. That this case is in conflict with the rule laid down in the foregoing California cases and also with the statement of the rule by the Supreme Court of the United States in the case above cited was pointed out by Mr. A. C. Freeman in his notes to the case of Gilbert v. How, as reported in 22 Am. St. Rep. 724. It is also to be noted that the rule announced in the case of Gilbert v. How has been very much modified by the courts of Minnesota in three later cases, viz. Tuman v. Pillsbury, 60 Minn. 520, 63 N. W. 104, Snell v. Weyerhauser, 71 Minn. 57, 73 N. W. 633, and Roy v. Harrison Iron Mining Company, 113 Minn. 143, 129 N. W. 154, in each of which later cases powers of attorney in almost the precise phraseology of that under review adverse possession for the required statutory herein were held to be sufficient to support conveyances of the separate property of the husband, in which at most the only interest of the wife was an inchoate right of dower. Brumagim v. Bradshaw, 39 Cal. 24; Spotts In each of these last-named cases the Supreme Court of Minnesota lays special emphasis upon the clause in the power authorizing the donee thereof to convey any lands, wherever situated, in which the donors of the power "may now or hereafter be in any way interested"; holding that these words must be given a broadening effect so as to take these cases out of the rule laid down in Gilbert v. How. The same precise phrase occurs in the power in question here. We are therefore of the opinion that for all of the foregoing reasons the power of attorney given by Mary Cosineau, formerly Mary Huot, and her husband, John Cosineau, was sufficient to have authorized the execution of the conveyance of the lands in question to Wm. S. Chapman, and hence to sustain the defendant's title derived through such con

veyance.

[2] The respondent further supports its claim of title to the premises by the plea and proof of adverse possession, and we think its claim in that behalf should also be sustained. The lands in question are rough mountain timber lands valuable chiefly, if not solely, for the timber thereon, which consists of a heavy growth of redwood, fir, and oak. From a period not long after the defendant received the conveyance of these lands from Chapman it began patrolling the same for the prevention of trespassing and for the protection of the timber against fires. In connection with both of these purposes trails were laid out and constantly maintained through various portions of the property from a time shortly after the conveyance to it of the property down to the date of the inception of this action, and which were made use of constantly by the agents of the defendant to keep hunters, fishers, campers, and other trespassers off the property, and to protect all portions thereof against fires. A cabin for the use of the patrols was built and maintained upon the premises, and from time to time as fires occurred within or threatened

v. Hanley, 85 Cal. 155, 24 Pac. 738; Webber
v. Clarke, 74 Cal. 11, 15 Pac. 431.
The other points made upon the appeal do
not require discussion.
Judgment affirmed.

. We concur: SHAW, J.; SLOSS, J.

(178 Cal. 803)

PEOPLE ex rel. JONES v. ZEMANSKY et al. (S. F. 8872.)

(Supreme Court of California. Sept. 16, 1918.) 1. ELECTIONS 156-RIGHT TO CERTIFICATE OF NOMINATION-PRIMARY ACT.

Under Primary Act, § 23, as amended by St. 1917, p. 1356, two candidates for judge of superior court of city and county of San Francisco were not entitled to certificate of nomination, where neither was "majority candidate" under section, that is, one receiving majority of all votes cast in San Francisco at primary election, and there were not four such majority candidates nominated at primary. 2. CONSTITUTIONAL LAW 43(2)-VALIDITY OF STATUTE-ESTOPPEL TO RAISE QUESTION.

Where establishment of claim of petitioner for writ of mandate to compel respondents to issue certificate of nomination to her, that the whole primary act is unconstitutional, would bar her from receiving certificate of nomination sought, Supreme Court need not consider points made by petitioner as to unconstitutionality of act.

In Bank. Application for writ of mandate by the People of the State of California, on the relation of Charlotte F. Jones, against Application J. H. Zemansky and others. denied.

Charlotte F. Jones, of Seattle, Wash., for petitioner.

PER CURIAM. [1, 2] Notwithstanding its title, this proceeding in so far as it can be considered by us, is in effect simply one by Charlotte F. Jones to obtain a writ of mandate compelling respondents to issue certificates of nomination to her and another, as candidates for judges of the superior court of

the city and county of San Francisco, by reason of the votes received by them respec tively at the recent primary election. As to neither herself nor the other candidate, who does not join in or assent to the petition, are sufficient facts alleged to make a prima facie

tion of trench was completed before injured employés entered it.

Department 2. Appeal from Superior Court, Los Angeles County; Frederick W. Houser, Judge.

Actions by William T. Noakes and by George B. Noakes against the City of Los

From judgments for plaintiffs, and orders denying new trials, defendants appeal. Affirmed.

case for relief, in that it is not made to ap pear that either was a "majority candidate" under the provisions of section 23 of the Pri-Angeles and others. mary Act (St. 1913, p. 1404, by St. 1917, p. 1356), that is, one receiving a majority of all the votes cast in San Francisco at said Albert Lee Stephens and Charles S. Burprimary election, and that there were not nell, both of Los Angeles, for appellants. four such "majority candidates" nominated Harriman, Ryckman & Tuttle, of Los Angeat said primary. If this was the situation, les, and Hyman Levin, of San Francisco, for neither she nor the other candidate named in respondents. her petition was entitled to a certificate of nomination, in view of certain provisions of said section 23 as to the validity of which provisions we can perceive no serious question. Furthermore, as to herself, her name not having been printed on the primary ballot and her 49 votes having been received from persons writing in her name on the ballot, it is not made to appear that she received a sufficient number of votes to equal the number required for a nomination paper, so as to entitle her to a certificate of nomination, under a provision of subdivision 9 of section 5 of the Primary Act.

[3] It is further claimed by petitioner that the whole Primary Act is violative of our Constitution. The establishment of any such claim would effectively bar her from receiving the certificate of nomination sought, and it is therefore unnecessary to consider the points made by her in that regard.

The application for a writ is denied.

(179 Cal. 38)

MELVIN, J. Defendants appeal from two certain judgments against them for damages and from the orders denying their motions for new trials. The plaintiffs, who are brothers, were both injured August 14, 1913, while at work in a trench excavated for the purpose of laying water pipes in Sixteenth street in the city of Los Angeles. They were workmen employed by the defendant board of public service commissioners of the city of Los Angeles. The other defendants were the city of Los Angeles, E. R. Flores, foreman in charge of the work, and the individuals composing the board of public service commissioners. Plaintiffs were nonsuited as to their asserted causes of action against the members of the board. The two complaints were essentially the same; the only differences arising from the fact, as pleaded, that one brother was more seriously injured than the other. There was a general demurrer to each complaint, which was overruled in each case. Appellants contend that the court

NOAKES v. CITY OF LOS ANGELES et al. erred in failing to sustain the demurrers, in

(two cases). (L. A. 4574.)

(Supreme Court of California. Sept. 24, 1918.) 1. PLEADING 403(4)-CURING OF DEFECTS -DEFECTIVE COMPLAINT - ANSWER - EVIDENCE.

Where demurrer was overruled, failure to allege that employers failed to provide safe place for work, and that he should have known place was unsafe, was cured by answer raising such issues, and by evidence and requested instructions relating thereto.

2. MASTER AND SERVANT 289(35)-INJURY TO EMPLOYÉ-ACTIONS-JURY QUESTION.

In employé's action against city for injuries sustained in water main excavation, caused by caving in of walls, whether city had provided safe place for work, which had been made unsafe by disobedience of orders by injured employé, held for jury.

refusing to grant a motion for nonsuit in each case, and because of error in one of the instructions to the jury.

The complaint in each instance alleged that the city was engaged in the business of selling and supplying water to its inhabitants; that the board of public service commissioners was the administrative branch of the government in charge of the water system; that on August 14, 1913, said board was excavating a trench on Sixteenth street and installing therein a main for use in its business of distributing water; that the plaintiff was working in said trench as a laborer, and as a servant of the city and its said board, under the immediate direction and control of defendant Flores; that while plaintiff was so employed the sides of the trench suddenly fell upon him, crushing and injuring him in a manner and to an extent specified; and "that said injuries and damage and said falling of the walls of said trench were and are due to the negligence of Rule requiring employer to provide safe defendants in failing to take proper, or any, place for work applied, where actual construc-precautions to prevent said walls from cav

3. MASTER AND SERVANT 286(19)-NONSUIT -CONFLICTING EVIDENCE.

In city employé's action for injuries sustained in water main trench, where evidence as to whether city had provided employés safe place in which to work was conflicting, there was no error in denying motion for nonsuit.

4. MASTER AND SERVANT 107(5)—INJURY TO SERVANT-SAFE PLACE.

ing in, and in leaving them in an unsafe, in- being a substantial conflict. secure, and dangerous condition."

It is contended that the demurrer in each case should have been sustained, because of lack of averment in the complaint that the injury was the natural and proximate result of the negligence of defendants; because said pleading does not, if taken as true, show that defendants failed to exercise reasonable care to provide a safe place to work; because it fails to set forth any facts showing that defendants knew, or should have known with exercise of reasonable care, that the place was unsafe; and because the "safe place" rule has no application in cases like these (citing in support of the last point Thompson v. California Construction Co., 148 Cal. 35, 82 Pac. 367).

[1] But we need not follow counsel for appellants in their discussion of the alleged infirmities of the complaints, because by their answers, their proposed instructions, and the testimony offered they put squarely in issue the matters which, according to their present contention, were not set up by the complaints. They alleged in the answer that they instructed the plaintiffs and other workmen to leave a bench of earth unexcavated along the line of said trench at every 10 feet, so that no greater distance than 10 feet of said trench should be in process of excavation at any one point; that this order was given to insure the safety of the workmen; and that it would have been effective for that purpose if the plaintiffs, in willful violation of instructions, had not dug out one of the "benches." This was in effect the pleading of compliance with the rule requiring employers to furnish a reasonably safe place in which to work. The testimony and offered instructions followed the same lines. Therefore any deficiency in the complaint was cured by the conduct of defendants. Boyle v. Coast Improvement Co., 27 Cal. App. 714, 151 Pac. 25; Slaughter v. Goldberg, Bowen & Co., 26 Cal. App. 318, 147 Pac. 90. [2, 3] The facts as related by the foreman himself emphasize the justice of discarding the rule applicable in cases where the laborer is engaged in preparing the very place in which he is to work, and is therefore under the same obligations as his master to look for and guard against dangers. Flores, the foreman, said that the trench was dug down to grade at the point where the accident occurred, that it was practically completed, and that the men were just leveling up the bottom of the trench. Plaintiffs had been employed there less than half an hour when they were injured. The cases were evidently tried upon the theory, so far as defendants were concerned, that they had provided a safe place which plaintiffs made unsafe by disobeying orders. Of course, it was for the jury to determine whether or not such defense was supported by the evidence, there

There was,

therefore, no error in denying the motion for nonsuit.

[4] The instruction criticized by appellants is denounced merely because it was predicated upon the rule requiring an employer to provide a safe place for his workmen. As the actual construction of the trench was completed before plaintiffs entered it, the applicability of the instruction is obvious. Ryan v. Oakland Gas, Light & Heat Co., 21 Cal. App. 14-21, 130 Pac. 693.

The judgments and orders are affirmed.

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

(178 Cal. 805) CRAWFIS v. EDWARDS, BREWSTER & CLOVER et al. (S. F. 7949.)

(Supreme Court of California. Sept. 17, 1918.) 1. BILLS AND NOTES 525-BONA FIDE PURCHASERS EVIDENCE.

In mortgagor's suit to cancel a mortgage and the nonnegotiable notes secured thereby, before maturity, evidence held to sustain a findwith intervention by purchasers of the notes ing that interveners purchased with full knowledge that the loan was a building loan, payable to mortgagor or his contractor, as building contract was performed, and charged with knowledge of outstanding equities.

2. CANCELLATION OF INSTRUMENTS 31 – HOLDERS OF MORTGAGE NOTES.

have been urged against purchasers of nonnegotiable mortgage notes before maturity with knowledge of outstanding equities between mortgagor and mortgagee, such purchasers in the notes would stand in place of the mortgagee. mortgagor's action to cancel the mortgage and 3. PRINCIPAL AND AGENT 137(1)—Sale of NOTES-ESTOPPEL.

As all defenses in a foreclosure suit could

That a mortgagor obtaining a building loan mortgagee would try to dispose of them and executed nonnegotiable notes, knowing that that they were more salable than one note, did not amount to an effort to mislead innocent purchasers, so as to estop him to deny that mortgagee was his agent in selling them, where a known related escrow contract required expenditure of $6,000 furnished by mortgagor before use of money secured by mortgage. 4. PRINCIPAL AND AGENT 123(1)—AGENCY

TO SECURE LOAN-PROOF.

That a mortgagor, obtaining a building loan of $12,000, executed 14 nonnegotiable notes, knowing that mortgagee would try to dispose of them and that they were more salable than a single note, did not prove mortgagee's agency to secure the loan, in view of a known related escrow contract providing for the use of $6,000 furnished by mortgagor before use of money secured by mortgage.

Department 2. Appeal from Superior Court, Alameda County; William A. Donahue, Judge.

Suit by George A. Crawfis against Edwards, Brewster & Clover, a corporation, with intervention by C. H. Smith and others. Judgment for plaintiff, and interveners appeal. Affirmed.

Brittain & Kuhl, of San Francisco, and Earl D. White, of Oakland, for appellants.

Edgar C. Chapman, of San Francisco, for | least they should be entitled to share in the respondent Edwards, Brewster & Clover. fund of $6,000 in the proportion that the sum Wm. F. Rose and Bruce Glidden, both of of $12,000 bears to $18,000. San Francisco, and Snook & Church, of Oakland, for respondent Crawfis.

MELVIN, J. Plaintiff sued as mortgagor to cancel 14 promissory notes secured by a mortgage and also to cancel the mortgage itself. Edwards, Brewster & Clover, corporation defendant, is the mortgagee, and the interveners, appellants, are persons who acquired the 14 promissory notes prior to maturity, paying for the said notes their face value. Interveners appeal from the judgment in favor of plaintiff.

The facts, about which there is little if any dispute, are as follows:

The court found that, by reason of the refusal of the corporation to make the next payment on the building following the exhaustion of the $6,000, the consideration for the notes and mortgage failed; that on or about the 15th of January, 1915, and at various subsequent times down to March 3d of that year, Edwards, Brewster & Clover, not acting as agent for Dr. Crawfis, requested the interveners to purchase the notes, and pursuant to such request the instruments were sold for their full face value; that neither at the times of purchase nor at any time did either plaintiff or the corporation represent to the purchasers that said Edwards, Brewster & Clover was the agent of Dr. Crawfis in the sale or distribution of the notes; and that as matter of fact the corporation was not and did not act in any of the transactions as Dr. Crawfis' agent. There was a finding specifically negativing the contention of appellants that the very purpose of issuing 14 notes rather than 1 was to further the success of the alleged agency, and there is a finding:

Crawfis owned certain real property and desired to place a building thereon. Patton, a contractor, undertook to secure a loan for Crawfis, if he, the said Patton, should be given the contract to erect the building on the land belonging to Crawfis. Accordingly, arrangements were made with Edwards, Brewster & Clover, and Crawfis executed the mortgage here in question and 14 promissory notes, aggregating $12,000 in face value. The notes and mortgage were delivered on November 23, 1914, and on the same day and as part of the same transaction Crawfis entered into a contract by which he was required to deposit with the corporation $6,000. By the latter contract it was recited that the "cash received and the notes enumerated," making the sum of $18,000 in all, was to be delivered to G. A. Crawfis in specified install-fore ments as progress payments became due on the building to be thereafter erected. The building was constructed and as the work went on the corporation paid $6.060, according to agreement, but failed and refused to pay any further sum, either to Dr. Crawfis or to his building contractor.

Interveners purchased the notes before maturity, and it is not denied by them that these instruments are nonnegotiable in form. It is contended, however, that plaintiff is estopped by his conduct from questioning the validity of the claims of interveners, and that it was the intention of all of the parties to the transaction that the 14 notes should be treated and offered for sale as negotiable instruments. The judgment provided that plaintiff should restore the $60, the amount in excess of the $6,000 deposited by him, which was paid for the purposes of the building by the corporation; but the further contention is made by appellants that, inasmuch as some of the money realized from the sale of the notes came into the hands of Edwards, Brewster & Clover on the very days upon which certain payments were made on the building contract, it is fair to assume that the money so paid, and not a part of the $6,000 deposited by plaintiff, went into the building, and

"That plaintiff, George A. Crawfis, executed at the instance of said defendant Edwards, said 14 promissory notes, rather than 1. solely Brewster & Clover, and without any intention on the part of plaintiff, George A. Crawfis, to Clover to sell said notes, or any of them, as authorize said defendant Edwards, Brewster & the agent of plaintiff, George A. Crawfis."

There were findings that no one of the interveners made any inquiry of plaintiff be

purchasing the notes, and that when the sales were made the corporation represented that it was the mortgagee in fact. There was also a finding that:

"Said interveners took said notes and paid the purchase price thereof with full knowledge that the loan contemplated by the plaintiff, George A. Crawfis, from the defendant Edwards, Brewster & Clover was a building loan, and that said building loan was not to be paid by defendant Edwards, Brewster & Clover to plaintiff, George A. Crawfis, or to said Patton, except as the building contract should be performed by said Patton in accordance with its terms and to the satisfaction of defendant Edwards, Brewster & Clover, the mortgagee of said mortgage."

[1, 2] If these findings are sustained by the evidence, the judgment is correct. The finding last quoted is supported by the testimony of Mr. Smith, one of the interveners, whose declarations under oath were by stipulation made binding upon his associates. He said that, when asked by Mr. Edwards, representing the corporation, to buy some of the notes, he investigated the mortgage and the value of the property. It seemed to him that the value was there, so he purchased the notes. Asked if Mr. Edwards said anything to him about a contract between the corporation and Dr. Crawfis, Mr. Smith said: "Yes; we went over the entire matter. looked over the mortgage, and he told me about

I