and contained numerous references to "the old road." One of these statements was that "The old road was many years ago established by competent persons as the county road, and money expended upon it by the state and county, making it a good, easy, safe, and practicable road." This was an admission of fact concerning the existence of the road, and was admissible in evidence as against the defendant. The case as a whole was very fully presented and fairly tried, and the court's findings are sufficiently sustained by the evidence. The judgment and order are affirmed. We concur: JAMES, J.; SHAW, J. (38 Cal. App. 194) STEERE v. FORMILLI. (Civ. 2443.) (District Court of Appeal, First District, California. Sept. 13, 1918. Rehearing Denied by Supreme Court Nov. 11, 1918.) 1. CONTRACTS 171(3) CONSTRUCTION OF BUILDING CONTRACT-ENTIRE CONTRACT. Owner's agreement to pay contractor, during construction of building, 75 per cent. of value of labor performed and material furnished at end of three-week periods, did not make contract separable, or settlements so made accounts stated. 2. DAMAGES 68-INTEREST-UNLIQUIDATED CLAIM. In contractor's action against owner for breach of building contract providing for payment by owner, at intervals of three weeks, of 75 per cent. of the value of labor performed and material furnished, interest should not be allowed on such claim prior to date of judgment; the claim being unliquidated. Appeal from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge. Action by J. E. Steere against Cesare Formilli. Judgment for plaintiff, and defendant appeals. Affirmed. Thomas H. Breeze, of San Francisco, for appellant. Walter H. Linforth, of San Francisco, for respondent. This the plaintiff that the said contract was terminated; that the reasonable value of the work and materials was $18,333.50; that the proportion of the value of the work and materials furnished to the value of the work and materials to be done and furnished was $18,333.50. In framing its judgment the lower court allowed interest on the balance found due from the date of discharge, March 2, 1915. [1] The principal point made by the appellant is that the work done and materials furnished during each three weeks constituted, under the terms of the contract, a separate contract, and the settlements made at the end of the three-week periods became accounts stated. This same point is presented in several ways, but the effect is the same. The point is not new. It has been expressly held that the contract provision in question does not operate to make the contract separable, but is a means provided by the contracting parties for estimating the amounts of the progress payments. American-Hawaiian v. Butler, 17 Cal. App. 764, 770, 121 Pac. 709; Keeling v. Schastey & Vollmer, 18 Cal. App. 764, 768, 124 Pac. 445; Adams v. Burbank, 103 Cal. 646, 650, 37 Pac. 640. [2] The claim sued on was unliquidated. Until a trial was had the amount was but the pleader's estimate. In such a case, interest should not be allowed prior to the date of the judgment. Edwards v. Arp, 173 Cal. 472, 473, 160 Pac. 551; American-Hawaiian v. Butler, supra. The lower court allowed interest from the date of the breach of the contract. modified by deducting therefrom the amount We think the judgment should be of the interest which was computed as accruing between March 2, 1915 (the date of the breach), and July 17, 1916 (the date of the judgment), and as thus modified, it should be affirmed. It is so ordered. We concur: LENNON, P. J.; BEASLY, Judge pro tem. (38 Cal. App. 214) GEE CHONG PONG et al. v. HARRIS. (Civ. 1862.) fornia. Sept. 18, 1918.) 1. COURTS 125-SUPERIOR COURT-JURIS DICTION-AMOUNT. STURTEVANT, Judge pro tem. is an action to recover damages for a breach by the owner of a building contract. A trial on questions of fact was had in the lower court, judgment was entered in favor of the plaintiff, and the defendant has appealed on the judgment roll. The lower court found: (District Court of Appeal, Third District, CaliThat the contract as pleaded contained a provision to the effect that the defendant would make payments "as follows, seventyfive (75) per cent. of the value of the labor performed and materials incorporated on the premises and in the said buildings and structures, as estimated by the defendant, less previous payments made, every three weeks commencing with the third week after the date of commencement of the plaster work"; that the plaintiff commenced the work on October 23, 1914, and continued to perform till March 2, 1915, when the defendant notified The superior court would have no jurisdiction of suit against administratrix, where amount of claim sued upon was less than $300, ty, on the ground that an equitable lien arose unless the action could be treated as one in equiout of an agreement upon which major part of claim was founded. 2. AFFIDAVITS 9-SUFFICIENCY. The test of the sufficiency of an affidavit is dictment for perjury may be sustained on it, if whether it is so clear and certain that an infalse. 3. AFFIDAVITS 2-SUFFICIENCY. Affidavit to claim of partnership against estate of deceased held insufficient, under Code Civ. Proc. § 1494, where it appeared to be made by the partnership (incompetent to make it), and it did not appear that it was sworn to by the partner who signed it. 227(3) AFFIDAVIT TO 4. EXECUTORS AND ADMINISTRATORS -CLAIM AGAINST ESTATE SUPPORT-SUFFICIENCY. Where affiant and claimant are the same, it is sufficient if affidavit to claim against estate of deceased person states that there are no offsets to the knowledge of "claimant," though Code Civ. Proc. § 1494, uses the word "affiant." | Appeal from Superior Court, Plumas County; J. O. Moncur, Judge. Action by Gee Chong Pong and others against Margaret Harris, as administratrix of the estate of Aaron Harris, deceased. Judgment for defendant, and plaintiffs appeal. Affirmed. L. N. Peter and James A. Nutting, both of Quincy, for appellants. A. R. Tabor and W. T. Phipps, both of Sacramento, for respondent. CHIPMAN, P. J. The second amended complaint sets forth an action in two counts. The first is based upon the sale of two certain gold nuggets, one of the value of $135, and the other of the value of $75, "upon an understanding and agreement between plaintiffs and said Aaron Harris (defendant's intestate) that plaintiffs should have a lien upon said personal property as security for the return thereof to plaintiffs or the payment to plaintiffs of the value thereof." is alleged "that said Aaron Harris never re It claim against the said estate; and that said administratrix be directed to pay the same in due course of administration." The affidavit to the claim, which latter is the basis of the action, reads as follows: "State of California, County of Plumas-ss. Fook Hing Lung Company, whose foregoing claim is herewith presented to the administratrix of said deceased, being duly sworn, says that the amount thereof, to wit. the sum of two hundred and twenty-five ($225.00) dollars, is justly due to the said claimant; that no payments have been made thereon which are not credited; that there are no offsets to the same to the knowledge of said claimant. Fook Hing Lung Co., by Gee Chong Pong, Member and Clerk of Said Co. day of September, A. D. 1915. Elizabeth Caya, [Seal] Notary Public in and for Plumas County, State of California. My commission expires Apr. 2, 1916." "Subscribed and sworn to before me this 20th Indorsement: "The within claim rejected this 15th day of October, A. D. 1915. Margaret Harris, Admx. of Estate of Aaron Harris." Defendant demurred to the complaint on the following grounds: (1) That the court has not jurisdiction "by reason of the fact that no lien is shown by said complaint and that the amount of the claim sued upon is less than three hundred dollars." (2) That two causes of action, one for the foreclosure of a lien for a balance due on account of said nuggets and one for cash advanced for certain hams, are improperly united. sufficient to constitute a cause of action. (3) That said complaint does not state facts The court sustained the demurrer "without leave to amend," and judgment passed for defendant. Plaintiffs appeal from the judg ment. [1] Clearly the court was without jurisdic turned the said personal property, or paid tion, unless the action relating to the alleged plaintiffs the value thereof, and ever since sale of said nuggets can be treated as an the said 2d day of September, 1914, said per-action in equity, on the ground that an eqsonal property has been held and possessed uitable lien arose out of the alleged agreeby said Aaron Harris and his estate," and ment. We do not deem it necessary to pass that at the time of his death said Aaron upon this question. Harris was indebted to plaintiffs in the sum of $210 for said gold nuggets "and the estate of said deceased is still indebted to plaintiffs therefor." action that the claim should first be propIt was necessary to the maintenance of the erly presented to the administratrix, as required by section 1494 of the Code of Civil Procedure, and ant, or some one in his behalf, that the amount * * For a second cause of action it is alleged that, on September 2, 1914, "plaintiffs pur-"must be supported by the affidavit of the claimchased of said 'Aaron Harris certain goods, wares, and merchandise, to wit, certain hams, and then and there paid said Aaron Harris cash in the sum of $15 therefor," to be thereafter delivered, but "that said Aaron Harris never delivered the said hams to plaintiffs, and plaintiffs have never received the same"; that at his death the said Harris was indebted to plaintiffs in the sum of $15, no part of which has ever been paid, and said estate is indebted therefor. * * It will be observed that the affidavit states that the claim was presented by Fook Hing Lung Company and that "Fook Hing Lung Company, being duly sworn, says," etc., and "that there are no offsets to the same to the knowledge of said claimant." The affidavit is signed: "Fook Hing Lung Co., by Gee Chong Pong, Member and Clerk of Said Co." The prayer is for judgment for $225; "that $210 thereof be adjudged a lien on the said personal property; that said personal property be decreed to be sold in satisfaction of said lien; that the said claim be allowed and approved, and adjudged to be a valid [2] A test of the sufficiency of an affidavit is whether it is so clear and certain that an indictment for perjury may be sustained on it if false. 2 C. J. 348. It has been held that an affidavit cannot be made by a partnership firm in the firm name, since it would be impossible to convict the individual partners of perjury upon the evidence of such affidavit. 2 C. J. 325. "An afflavit on behalf of a partnership, therefore, should be sworn to by one of the partners, and where it appears in the body of the affidavit that it was sworn to by one of the partners it is sufficient, although signed with the firm name." Id. not show that it was sworn to by any person competent to make it. We do not think the statute has been sufficiently complied with. The judgment is therefore affirmed. We concur: HART, J.; BURNETT, J. (38 Cal. App. 196) CHRISTMAN v. SOUTHERN PAC. CO. (Civ. 2575.) (District Court of Appeal, Second District, California. Sept. 13, 1918.) 1. RAILROADS 328(5) INJURIES TO PERCONTRIBUTORY NEGLIGENCE SONS [3] The affidavit states that the partnership was sworn, and it nowhere appears that the affidavit was sworn to by one of the partners. As signed, it imports that Chee Chong Pong signed the name of the firm, but does not import that he was sworn. Nor does it appear from the jurat by whom the affidavit was sworn to. The implication, if any, would be that it was sworn to as stated in the body of the affidavit, to wit, by the partnership. If the affidavit had been prop-2. RAILROADS 335(1) erly made by one of the partners, the statement that there are no offsets to the knowledge of "claimant," instead of "affiant," would be immaterial. Warren v. McGill, 103 Cal. 155, 37 Pac. 144. As the affidavit reads, there is no statement that there are no off Where truck driver was injured when his radiator was struck by gasoline motorcar on railroad he was guilty of contributory negli gence, without which the accident would not have occurred, when with full knowledge of the situation, and the time of trains, he approached a crossing the view of which was obstructed at such speed that he could not stop before getting on rails. -- INJURIES TO PERSONS-CONTRIBUTORY NEGLIGENCE-EFFECT. Where truck driver approached railroad crossing the view of trains from which was ob structed at such speed that he could not stop before reaching the rails the fact that the railroad company was also negligent did not aid the plaintiff's case. TRAVELERS-CROSSING ACCIDENTS - GASO- sets, for the reason that the affidavit pur-3. RAILROADS 324(1)-CARE REQUIRED OF ports to be made by one incompetent to make it, to wit, the partnership. That such statement is essential, see Perkins v. Onyett, 86 Cal. 348, 24 Pac. 1024. In Maier Packing Co. v. Frey, 5 Cal. App. 80, 89 Pac. 875, the affidavit read: "Maier Packing Co., by Simon Maier, Pres., whose foregoing claim is herewith presented to the administrator of the estate of said deceased, being duly sworn, says," etc. [Signed] Maier Packing Co., Simon Maier, Pres. "Subscribed and sworn to before me, this 15th day of June, 1904." It was held "impossible to reconcile the provisions of this affidavit with the requirements of the statute"-citing Perkins v. Onyett, supra. [4] It is claimed that the Maier Packing Co. Case is not to be followed, citing Scott Stamp & Coin Co., Limited, a Corporation, v. Leake, Adm'r, etc., 9 Cal. App. 513, 99 Pac. 731, and Western States Ins. Co. v. Lockwood, 166 Cal. 185, 135 Pac. 496. In both of these cases the affidavits appeared to have been made by one of the officers of the corporation, and it was held in such case that the requirement of the statute that, where the affidavit is made by a person other than the claimant, the reason therefor must be set forth, does not apply; and also, where the affiant and the claimant are the same, it is sufficient if the affidavit states that there are no offsets to the knowledge of "claimant," though the statute uses the word "affiant." In the present case the affidavit does The care required of persons approaching railroad tracks along which gasoline motorcars are operated is the same as that required when the cars are operated by electric power along in terurban lines. Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge. Action by Frank D. Christman against the Southern Pacific Company. Judgment of nonsuit, and plaintiff appeals. Affirmed. J. W. Hocker, E. E. Morris, and Robert E. Austin, all of Los Angeles, for appellant. Henry T. Gage, W. I. Foley, and W. I. Gilbert, all of Los Angeles, for respondent. CONREY, P. J. Action to recover damages for personal injuries which the plaintiff received by reason of a collision between a motor truck operated by the plaintiff and a gasoline motorcar operated by the defendant. At the close of the plaintiff's evidence defendant moved for a nonsuit, on the ground that the testimony showed that the plaintiff was guilty of contributory negligence, which was the proximate cause of the accident. This motion was granted, and the plaintiff appeals from the judgment. Stating the facts as favorably to the plaintiff as they can be under the evidence, they are as follows: On the 7th day of February, 1914, the defendant was a common carrier of passengers and freight for hire, and operating a line of steam railroad carrying passen gers and freight, and running from the city of Los Angeles, through and east of Norwalk, in Los Angeles county. At the town of Norwalk the railroad track runs east and west across a certain public highway running north and south. At about noon of that day the plaintiff was driving an auto truck along the highway, and was moving toward the railroad track, in a southerly direction. At the same time the motorcar of the defendant was approaching the highway crossing from the west. Plaintiff approached the railroad track while traveling at a rate of 8 or 10 miles an hour, and the motorcar was traveling at the rate of 45 or 50 miles an hour. There was a blacksmith shop on the west side of the highway, located about 35 feet from the railroad right of way. When the plaintiff passed the blacksmith shop, he first looked east, and then looked toward the west. Looking toward the west, he saw the gasoline motorcar, which was a passenger car of the defendant, approaching the crossing. When he first saw the motorcar, he was about 30 feet from the crossing. Immediately he put on his brakes, with the result that the auto truck stopped so that its radiator was just over the nearest rail of the railroad track. At that point it was struck by the motorcar. Prior to the day in question the plaintiff had driven over this crossing 8 or 10 times, and knew that the railroad track was there. It was a fact, and the plaintiff knew it to be a fact, that when driving his motor truck at the speed at which he then was driving he could not stop within less than 35 or 40 feet. The plaintiff was aware of the fact, not only that there was a railroad track there, but knew also that trains were being operated over it. and listen for a gasoline motorcar. There is in the record no evidence tending to show that the defendant was operating said gasoline motorcar without legal right so to do. We perceive no reason why the requirements of care on the part of a person approaching the tracks on which gasoline motorcars are operated should be held to be any different than the standard established for those seeking to cross the tracks of an electric railway. We are referring, of course, to interurban railroads, and not to city street railways. Loftus v. Pacific Electric Ry. Co., 166 Cal. 464, 467, 137 Pac. 34, and cases there cited. The judgment is affirmed. We concur: JAMES, J.; SHAW, J. (38 Cal. App. 204) COSBY V. DANZIGER. (Civ. 2578.) (District Court of Appeal, Second District, California. Sept. 16, 1918.) 1. PUBLIC LANDS 7-ESTATE Granted— AUTHORITY OF GOVERNMENT. The government of the United States, in adopting the laws under which it will transfer public lands to private persons, has power to grant such lands in fee, or less than in fee, or on lease for limited terms and limited uses. 2. VENDOR AND PURCHASER 135(1)—UNIN CUMBERED TITLE-GOVERNMENT EASEMENTS. A contract to pass an ordinary clear and unincumbered title is not complied with by offering a title based on a patent from the United to be constructed by its authority. States which excepts a right of way for ditches Appeal from Superior Court, Los Angeles County; L. T. Price, Judge. Action by Walter Cosby against J. M. Danziger. From a judgment for plaintiff, and a denial of a new trial, defendant appeals. Reversed. [1, 2] Upon the facts thus shown, all of which were admitted by the plaintiff, it is clearly established that the plaintiff was W. N. Goodwin, Hunsaker & Britt, and guilty of contributory negligence, without | Goodwin & Morgrage, all of Los Angeles, for which the accident could not have occurred. appellant. H. T. Morrow and Dave F. Smith, With complete knowledge that he was ap- both of Los Angeles, for respondent. proaching a railroad crossing which he knew to be regularly in use, he drove his auto truck at a rate of speed so great that, as he himself knew, his machine was bound to go upon the track, at all times after the moment of his first opportunity to look for the train. Having thus neglected the most obvious precautions for taking care of his own safety at a time and place where he had ample opportunity to use those precautions, the plaintiff is not entitled to recover damages for the injuries received. The fact that there was concurrent negligence on the part of the defendant does not, under these circumstances, aid the plaintiff's case. [3] Counsel for appellant contend that the defendant was unlawfully operating a gasoline motorcar on a steam railroad line, and that under the circumstances here shown the plaintiff was not under obligations to look CONREY, P. J. The defendant appeals from a judgment awarding to the plaintiff a sum representing the unpaid balance of the purchase price found to be due under a contract for the sale by plaintiff to defendant of a tract of land in the county of Kern. There is also an appeal from an order denying the defendant's motion for a new trial. The contract was executed on the 28th day of November, 1908. Part of the consideration was paid at that time and the remainder was due six months from the same date. The contract provided that "Upon the payment of the balance of the said buyer a good and sufficient deed of grant, purchase price said seller agrees to deliver to bargain and sale, conveying said premises to said buyer free and clear of all incumbrances, of title to said land, showing the title of said and also to deliver to said buyer an abstract seller to said land to be free and clear of all This was not a complete abstract. For all that appears therefrom, there may have been liens or easements of record, covered by said incumbrances. Said buyer hereby agrees to assume and pay the taxes on said property for the fiscal year 1908-09, and shall be entitled to immediate possession of said premises and to remove therefrom any mineral, oil, water, or oth-exception, and there may have been actions er property." pending, or judgments existing, in the federal courts of the district in which the land is situated, affecting the plaintiff's title. It may be, however that the defendant's failure to specify any objection to the incomplete condition of the abstract deprives him of the right to insist upon such objections. As to this matter we express no opinion, since upon other grounds we shall hold that the plaintiff is not entitled to prevail in the action. The court found that on the 13th day of December, 1911, the plaintiff tendered to defendant, and offered to deliver to defendant, a deed of grant, bargain, and sale, in the form provided in the contract, conveying the real property described in the contract, free and clear of all incumbrances, and at the same time tendered to defendant and offered to deliver to defendant an abstract of title, which abstract of title showed the title of plaintiff in and to said real property free and clear of all incumbrances; that defendant at said time did not specify any objection to the deed, or to the abstract of title, or to the "That in all patents for lands hereafter taken title of said real property; that the plaintiff up under any of the land laws of the United duly made renewal of the same offer in open act west of the one hundredth meridian, it shall States or on entries or claims validated by this court at the time of the trial, upon condition be expressed that there is reserved from the that defendant would pay plaintiff the bal-lands in said patent described, a right of way ance due and unpaid to plaintiff under said contract. Appellant contends that the evidence does not support the findings of the court to the effect that the plaintiff tendered to defendant a deed accompanied by an abstract showing title to the premises in question vested in the plaintiff free and clear of any and all incumbrances. The abstract of title which was tendered by the plaintiff to the defendants shows that the instrument under which the plaintiff claims that legal title to the premises described in the contract became vested in him is a patent issued by the United States of America to Walter Cosby, dated June 7, 1905. A copy of this patent, exemplified under certificate of the recorder of the General Land Office at Washington, was recorded in the recorder's office of Kern county, Cal., on the 16th day of November, 1910. Besides describing the property as the N. E. 4 of section 24, etc., (being the same description as in the contract between plaintiff and defendant), the patent designated the property as being "that certain placer mining claim and premises known as the Black Goose The right of way reservation contained in the patent to which we have referred was made pursuant to an act of Congress of August 30, 1890, which provided: thereon for ditches or canals constructed by authority of the United States." 26 Stat. 391, c. 837; 8 Fed. Stat. Ann. (2d Ed.) p. 802. The object of this legislation was to save to the government the right to thereafter enter upon land for which patents might be issued, and construct and maintain thereon such canals and ditches as might be deemed necessary in furtherance of the government's policy for the reclamation of arid lands. Green V. Willhite (C. C.) 160 Fed. 755; United States v. Van Horn (D. C.) 197 Fed. 611. We now have gone far enough to see that the plaintiff agreed to deliver to the defendant a deed conveying said premises to the buyer free and clear of all incumbrances and to deliver to defendant an abstract of title showing the title of the plaintiff to said land to be free and clear of all incumbrances; that the plaintiff claims the right to fulfill that contract by conveying the land to the defendant subject to the right of the United States government at any time to construct and maintain ditches and canals across the land through any part thereof which the government may select. placer mining claim." The patent grants Counsel for respondent say that appellant "said mining premises," etc., subject, never- had knowledge of the reservations in the theless, to certain conditions and stipulations, one of which is as follows: "4. ** And there is reserved from the lands hereby granted a right of way thereon for ditches or canals constructed by authority of the United States." The certificates attached by the Kern County Abstract Company to the several sections of the abstract as made by it declare that the same is "a full, true, and complete abstract of title to the land hereinafter described, as shown by the records in the county offices of the county of Kern, state of California, except the records and proceedings of the board of supervisors of said Kern county, as also all matters, instruments, and proceedings on file or of record relating to water, water rights, ditches, and ca title at the time the contract was entered into; that he contracted in the light of that knowledge, and by his conduct construed the contract in a manner inconsistent with his contention here. This claim is not borne out by the record. There is no evidence tending to show that at the time when the contract was made appellant had any knowledge or notice of the source of respondent's title. Even if it could be assumed that appellant must have known that the title rested upon a federal basis, yet there is no evidence that he knew or had notice that the plaintiff's patent was of later date than August 30, 1890, and that therefore it necessarily would contain the reservation to which we have |