author: EDMONDS, J.

text:
    [L. A. No. 17199.
    In Bank.
    November 10, 1939.]
    CHARLES W. STORY, Appellant, v. ESTELLE PORTER CHRISTIN et al., Respondents.

      Clyde C. Shoemaker, Winthrop 0. Gordon and William J. Currer, Jr., for Appellant.
    Charles A. Christin and Guthrie & Darling for Respondents.
   EDMONDS, J.

The appellant’s action for the conversion of nursery stock was dismissed by the superior court upon the ground that the complaint does not state a cause of action, and the correctness of that ruling is the only question presented for consideration.

Some years ago, the appellant leased certain real estate owned by the respondents, using it to grow young orange and walnut trees. Dater he contracted to purchase the land for an amount payable in instalments. This contract was replaced by one under which the appellant agreed to pay a larger amount for the land but was given three additional years to make, the payments required. During the time these contracts were in effect, and in accordance with his rights under each of them, he was in possession of the property, using it to grow nursery stock for sale. Upon his failure to pay interest and taxes as he was required to do, the respondents successfully sued to cancel his contract (Christin v. Story, 119 Cal. App. 326 [6 Pac. (2d) 301]), and they subsequently were placed in possession of the land under a writ of assistance. The appellant then brought the present action, alleging that after the respondents reentered upon the property, they prevented him from removing the nursery stock and converted it to their own use.

By his complaint the appellant alleged these facts: The nursery trees were planted by him while he was vendee in possession of the property. They were planted closely together in rows and in such close proximity to each other that it was impossible for them to remain in that position for more than a short period, and thereafter develop and become a part of a producing orange orchard or walnut grove. The vendors of the land knew of the buyer’s intention to sell and remove these trees after a short period of time. At the time of their conversion by the respondents, many trees had been sold on future delivery, and the appellant at the time of the alleged conversion was endeavoring to sell the remainder of them. The respondents, and each of them, had full knowledge of these facts, including the sale of trees and contracts for future delivery, and all of the parties understood and intended that the nursery trees should not become permanently annexed to the real estate but should remain the personal property of appellant, to be sold by him for the purpose of planting in orchards.

The appellant also alleged that on or about the day he was put out of possession, and thereafter, he notified the respondents that they were wrongfully withholding and retaining possession of his nursery stock and demanded that they immediately deliver all of it to him, or permit him to remove it from the premises, but they refused to comply with his demand. According to the appellant’s theory, as the parties intended that the trees planted by him should not become permanently affixed to the land, they were his personal property and constituted stock in trade for sale to the public in his nursery business. He also asserts that the complaint states a cause of action because facts are alleged which show the conversion of a growing crop wrongfully taken from his possession.

The respondents admit that the nursery trees were not fixtures, but they assert the right to them as a growing crop unsevered from the land at the time the appellant’s right to possession was terminated by a judgment. Further stating their position, the respondents claim that a crop is a part of the soil in which it is growing, and only “by an express agreement or by an implied agreement created by estoppel, and not by any intention of the grower”, may it be deemed personal property. Upon this point the appellant is charged with an asserted admission or stipulation made by his counsel when the sufficiency of the complaint was being considered, that the written contract for the purchase and sale of the land contains no provision allowing the buyer to remove nursery stock. Also, the respondents claim, the trial court properly took judicial notice of the prior action between the parties and the judgment rendered therein.

The ancient law rigidly applied the maxim quicquid •plimtatur solo, solo cedit and held that whatever was attached to the land in any manner whatsoever was a part of the land. (7 Holdsworth’s History English Law, 284; 7 Id. 485.) This rule was applied to plants and trees growing in the soil and also to buildings and other product of man’s labor. The tenant, therefore, had no right to remove anything placed upon or annexed to the land, for once annexed it became a part of the land and the landlord’s property.

Because of the injustice of the common law in this regard, an exception soon developed and a tenant at will or for life or any possessor of an uncertain estate was given the right to come upon the land and reap the crops which he had planted before the termination of his estate. However, only annual crops which were the natural profit of the soil to which the tenant had contributed by his labor miglit be taken. (Coke on Littleton, sec. 55b.) This rule is followed in California but the word “crop” has been defined as including fruit grown on trees, although the trees are not included in that term. (Cottle v. Spitzer, 65 Cal. 456 [4 Pac. 435, 52 Am. Rep. 305].)

Many years ago, it was held that in this state the word “nursery” as used in respect to horticulture, “is a place where young trees are propagated for the purpose of being transplanted ...” (Attorney-General v. State Board Judges, 38 Cal. 291, 296.) It is a matter of common knowledge that in the nursery business the young trees often remain in the soil for much longer than one year. There is no annual sowing and reaping, the purpose of planting being that they may later be transplanted. Such trees are attached to the soil by roots because only in this manner may they be kept ready for sale. Of course, they grow and develop in the meantime, but they are not a profit of the land in the same sense as an annual crop matured from seed planted in the ground and harvested within the year and do not constitute a “crop” within the legal meaning of that term.

On the other hand, such trees seem to have all the characteristics of stock in trade, which is a stock of merchandise as that term is ordinarily used among business men. This term includes, the goods or chattels which a merchant holds for sale. (Shasta Lumber Co. v. McCoy, 85 Cal. App. 468 [259 Pac. 965]; Charles J. Off & Co. v. Morehead, 255 Ill. 40 [85 N. E. 264, 126 Am. St. Rep. 189, 14 Ann. Cas. 434, 20 L. R. A. (N. S.) 167]; Swift & Co. v. Tempelos, 178 N. C. 487 [101 S. E. 8, 7 A. L. R. 1581].) It is “the visible and tangible property with which the trade or business of the owner is carried on, and to which it relates”. (New York Biscuit Co. v. Cambridge, 161 Mass. 326 [37 N. E. 438].) The term, of course, varies according to the business to which it is applied and includes articles which cover a very wide range. Nursery trees are attached to the land by their roots because, under the law of agriculture they must get their nourishment from the land. The ground is the only feasible storage place for this salable product and soil serves the dual purpose of maturing and preserving until a buyer is found for them.

The question here considered does not appear to have been decided before in this state, although the case of Asato v. Emirzian, 177 Cal. 493 [171 Pac. 90], refers to nursery stock as personal property. In Kirkman v. Sargent, 42 Cal. App. 290 [183 Pac. 591], the court said that a determination whether nursery stock is real or personal property turns upon the intention of the parties. As between the tenant nurseryman and a condemnor under eminent domain, the young trees were held to be an improvement of the real estate, although as between the grower and the lessor they were personal property. (City of Los Angeles v. Hughes, 202 Cal. 731 [262 Pac. 737].) These cases are not controlling under the facts of the present case but they indicate that nursery stock should be classified as personal property unless there is evidence that the parties, as between themselves, intended that they should be a part of the realty.

Decisions in other states holding that under particular circumstances nursery stock is a part of the realty, are not authority for a determination of the rights of a dispossessed vendee under an executory contract of sale, who is suing his vendor upon the facts pleaded by the appellant in this case. These allegations show that he placed the nursery stock upon the land solely for the purpose of removal and sale, and state a cause of action for the conversion of a stock in trade.

The judgment is reversed.

Curtis, J., Shenk, J., Carter, J., Houser, J., Knight, J. pro tern., and Spence, J., pro tern., concurred.

Rehearing denied.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [S. F. No. 16189.
    In Bank.
    November 13, 1939.]
    ARCHIBALD CANE, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
    [S. F. No. 16297.
    In Bank.
    November 13, 1939.]
    ARCHIBALD CANE, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
    Archibald Cane, in pro. per., for Petitioner.
    Philbriek McCoy for Respondent.
   THE COURT.

By separate proceedings, the petitioner seeks to review two recommendations of the Board of Governors of the State Bar of California that he be disbarred from practicing law in this state. The first recommendation is the result of disciplinary proceedings instituted against the petitioner in April, 1937. In the latter part of June of that year, petitioner was adjudged insane and committed to a state hospital. Later, pursuant to the rules of procedure of the State Bar, this court entered an order suspending him from practice and staying the proceedings with reference to the board’s recommendation until the further order of the court.

In June, 1938, the petitioner was discharged from the hospital upon the ground that he had recovered and in October of that year the stay of disciplinary proceedings was terminated. Thereafter, he filed in this court the application numbered S. F. 16189 to review the recommendations of the board of governors. In September, 1938, the State Bar instituted further disciplinary proceedings against the petitioner relating to additional transactions that had occurred prior to the time of his commitment to the asylum. This resulted in a second recommendation of disbarment by the board of governors which is now before the court for review in the proceeding numbered S. F. 16297.

The facts upon which the board of governors’ recommendations are based are largely undisputed. On October 15, 1929, petitioner, who is now 34 years of age, after examination was admitted to practice law in this state. For several years he was employed on a salary basis by the San Francisco Legal Aid Society. In so far as the record shows, his difficulties began early in 1935 when he commenced misappropriating the funds of his clients. For one of these occurrences he was suspended from practice for a period of 30 days upon the recommendation of the board of governors.

The transaction for which the board first recommended disbarment arose out of a divorce action in which the petitioner had been employed as attorney for the wife. In December, 1935, the wife, who was then in Switzerland, wrote petitioner asking him to collect and forward the money due her under the divorce decree. In June and July of 1936, the petitioner collected a total of $298 from the husband, who requested petitioner to hold it until he could make a further payment so that the entire sum could be sent at one time. However, the husband sent the next payment direct to his wife in Switzerland and then learned some six months later that no part of the $298 had been forwarded’ to the wife. Petitioner claims that he was entitled to deduct a fee for his collection services from these funds but admits that he never communicated with the wife after receiving the money. During a period of several months, the Swiss Consul at San Francisco unsuccessfully endeavored to obtain the money from the petitioner, and the client’s claim was finally settled, after charges had been filed with the State Bar, upon the payment of $200.

The second disciplinary proceeding relates to the affairs of some eight clients. It appears that the petitioner accepted $90 from two persons as a fee and costs to qualify them as business partners under a fictitious name. He failed to perform these services, co-mingled the money with his own and retained it for his own use and purposes. Another client employed him to bring an action to annul her marriage and paid him $40 toward fees and costs. He failed to take any action for her other than to file a complaint and retained this money also. The petitioner was employed by three other clients to institute divorce suits in their behalf and was paid a total of $110 on account of costs and fees. In each case he failed to take any action whatsoever but used the money for his own needs.

The record further shows that the petitioner was employed in a certain guardianship proceeding in connection with which his client paid him $135. Of this he claimed $50 on account of fees and spent $53 for costs, leaving $32 unaccounted for. He also received $600.52 from the sale of certain property involved in these proceedings, and of this sum he admittedly appropriated all except $80. Also, during this period he received and failed to account for $400.19 which he had received as special administrator of the estate of a deceased person. This defalcation was later made good by the surety on the petitioner’s bond, to whom he is still indebted for the amount paid.

In November, 1936, the petitioner obtained an award by the Industrial Accident Commission in behalf of another client in the sum of $688.61 including an allowance of $65 on account of attorney’s fee. Pursuant to a written authority from his client, he collected the amount of the award and retained almost $500 of it as a loan from the client. This loan was purportedly made in consideration of the petitioner’s agreement to waive the fee awarded him. However, the local investigating committee and the board of governors found that this agreement was obtained upon petitioner’s false representation to the client that the fee awarded him was insufficient and that if -the client did not make the loan, petitioner would sue him in the civil courts for 50 per cent of the award and would doubtless recover that amount. Although petitioner denied making any such representation, the testimony of the client substantially supports the findings.

Another instance of misappropriating client’s funds, which occurred in 1937, was not included in the State Bar’s charges against petitioner but resulted in an indictment against him for grand theft. He stood trial upon this charge after his release from the asylum and was found guilty but was acquitted upon a hearing of the further plea of “not guilty by reason of insanity”. A transcript of that hearing, containing testimony concerning petitioner’s mental condition given by two psychiatrists appointed by the court, was received in evidence in the disciplinary proceedings.

It is evident that the facts proved against petitioner show a clear violation of the rules of professional conduct and, standing alone, would fully justify the conclusion of the board of governors that the petitioner should be disbarred. (Mauer v. State Bar, 219 Cal. 271 [26 Pac. (2d) 14]; Marsh v. State Bar, 2 Cal. (2d) 75 [39 Pac. (2d) 403]; Wilcox v. State Bar, 2 Cal. (2d) 614 [42 Pac. (2d) 631] ; Mills v. State Bar, 6 Cal. (2d) 565 [58 Pac. (2d) 1273]; Kennedy v. State Bar, 13 Cal. (2d) 236 [88 Pac. (2d) 920].) Petitioner urges, however, that the findings and recommendations are not justified because, during the period within which the acts complained of were committed, he was under the mental disability which resulted in his being adjudged insane in June, 1937. He contends further that the evidence shows that he is now completely normal and has rehabilitated himself during the period of 27 or more months that he has refrained from practicing law and that “to disbar him because of misconduct during the period when he was incapable of exercising his normal judgment and discretion would ... be penalizing him unjustly. ...”

Three psychiatrists testified concerning the petitioner’s mental condition at the time he committed the acts complained of. Two who appeared on behalf of the petitioner agreed that he had been suffering from the manic-depressive type of insanity; one of them explained that individuals so afflicted “are fully alive to the nature of the things they are doing and the consequences of their acts . . . but they are emotionally in such a state that they can’t control those things”.

The third physician, who was consulted by the local administrative committee of the State Bar, stated that some of the petitioner’s deviations “were certainly the result of conscious processes, dictated by urgent necessity, especially where financial difficulties were concerned ...” and that “there were other situations in which morality, as such, did not enter, and in which he could exercise no conscious control of his actions.” This doctor was of the further opinion that petitioner “would not be able to handle himself in any better manner than he has in the past, because he still shows marked emotional instability and only fair insight” and in view of this fact he did not believe that it would be safe for the petitioner in the interest of society to continue the practice of law.

It is clear that there is substantial support in this evidence for the finding of the local administrative committee that the petitioner was not incompetent during the period when his transgressions occurred. Undoubtedly, as stated by Dr. Wolfsohn, the petitioner’s acts were dictated by urgent financial necessity. But neither necessity nor misfortune is a defense to the attorney who uses the money of his clients. ”

It is, therefore, ordered that the petitioner be disbarred from the practice of the law in this state and that his name be stricken from the roll of attorneys.


author: CURTIS, J.

text:
    [Crim. No. 4246.
    In Bank.
    November 14, 1939.]
    In the Matter of the Disbarment of H. L. McALLISTER, an Attorney and Counselor at Law.
    Klein & Clarke for Petitioner.
    Philbrick McCoy for Respondent the State Bar of California.
   CURTIS, J.

Upon the filing in this court by the clerk of the Superior Court of the County of Alameda, in pursuance oil section 288 of the Code of Civil Procedure, of a certified copy of the record of conviction of H. L. McAllister, the petitioner herein, of the crime of conspiracy to violate section 17 of the General Cemetery Act (Stats. 1931, p. 2434, as amended; Deering’s General Laws, Act No. 1288), this court entered an order removing petitioner from his office as an attorney and counselor at law, it appearing to this court at the time of the entry of said order that the judgment of conviction had become final. Upon his petition, a rehearing of said matter was granted petitioner and the same is now before this court for decision.

The sole question for our consideration is whether the petitioner was convicted of a crime involving moral turpitude.

Section 17 of the General Cemetery Act provides that, “Every person . . . who shall sell, offer for sale or advertise any cemetery plot under representation that such plot is under perpetual care before a perpetual care fund has been established for the cemetery in which such property so sold, offered for sale or advertised is situated, shall be guilty of a misdemeanor. ’ ’

Undoubtedly the violation of this section of said act would involve dishonesty if not fraud. To sell lots in a cemetery representing that they are under perpetual care when no provision had been established for such perpetual care would be a false representation and make the seller thereof liable in a civil action, and under said statute, render him subject to criminal prosecution. A conviction under said statute would manifestly be a conviction of a crime involving moral turpitude. (In re Finch, 156 Wash. 609 [287 Pac. 677] ; In re Comyns, 132 Wash. 391 [232 Pac. 269].)

Moral turpitude is defined as “everything done contrary to justice, honesty, modesty, or good morals”. (Matter of Coffey, 123 Cal. 522, 524 [56 Pac. 448]; Lantz v. State Bar, 212 Cal. 213, 218 [298 Pac. 497]; Jacobs v. State Bar, 219 Cal. 59, 64 [25 Pac. (2d) 401].) If the actual commission of an offense involves moral turpitude, then a conspiracy to commit such offense would involve moral turpitude. (In re O’Connell, 184 Cal. 584 [194 Pac. 1010] ; In re O’Connell, 199 Cal. 538 [250. Pac. 390, 48 A. L. R. 1232]; In re Shepard, 35 Cal. App. 492 [170 Pac. 442].)

Petitioner seeks to avoid the effect of said judgment by reason of a statement made by the trial judge immediately after pronouncing judgment against him. This statement was as follows: “The imposition of a fine rather than any county jail or state prison sentence was imposed for the reason that I do not believe that the defendant’s license to practice law should be forfeited by reason of his conviction, and I have therefore treated the case as a misdemeanor. The crime of which the defendant has been convicted upon the eighth count is not, in my opinion, involving moral turpitude. ’ ’

We cannot see that this statement of the trial judge could in any way change the character of the crime of which petitioner was adjudged guilty. The trial court by imposing a fine against the petitioner instead of committing him to the state prison made the offense of which he was found guilty a misdemeanor instead of a felony, but the penalty of disbarment or suspension of an attorney applies to the conviction of a misdemeanor involving moral turpitude as well as to a felony of the same character. (Subd. 1, sec. 287, Code Civ. Proc.) It might be well to state here that under section 182 of the Penal Code, the court was authorized after petitioner’s conviction to sentence him to serve a term of imprisonment in a state penitentiary or county jail, or order that he pay a fine, or both.

Petitioner contends that this statement of the trial court was in effect a finding of the trial court that he was not guilty of an offense involving moral turpitude. But the trial court had no authority to make such a “finding”, if we can use that term in referring to this statement, as the jury had already found to the contrary.

Whether petitioner was convicted of a crime involving moral turpitude or of one not involving moral turpitude was a question of law and not one of fact, and the prerogative to decide that question of law is with this court, upon the transmission to this court of the certified copy of the record of conviction by the clerk of the trial court, and not with the trial court.

In acting in this matter, this court is limited to the consideration of the record of conviction as certified to us by the clerk of the trial court, as section 287 of the Code of Civil Procedure makes said record conclusive evidence of petitioner’s conviction. As this record conclusively -shows that petitioner was convicted of an offense involving moral turpitude, and that the judgment of conviction is now final, we have no alternative but to invoke and apply the law as in such eases made and provided.

It is, therefore, hereby ordered that said H. L. McAllister, be removed from his office as an attorney and counselor at law, and that he be precluded from acting as an attorney or agent of another, in and before all the courts, commissions, and tribunals of this state, and from holding himself out to the public as an attorney or counselor at law.

Shenk, J., Houser, J., Edmonds, J., Gibson, J., Carter, J., and Waste, C. J., concurred.


author: SPENCE, J., pro tem.

text:
    [L. A. No. 16282.
    In Bank.
    November 15, 1939.]
    IRENEO ROTEA, Respondent, v. PABLO IZUEL, as Executor, etc., Appellant.

      Fall & Fall, W. B. Bobbitt, Earle M. Daniels and Allen 0. Cooper for Appellant.
    Allan J. Carter and Walter Y. Stedman, Amici Curiae, on Behalf of Appellant.
    Alfred L. Bartlett, Kirtland I. Perky, James E. Fenton and Frank G. Howe for Respondent.
   SPENCE, J., pro tem.

Plaintiff brought this action against the defendant executor of the last will and testament of Antonio Izuel, deceased, seeking to recover upon a rejected claim for the alleged reasonable value of services rendered to Eugenia Izuel, the sister of said Antonio Izuel, deceased. Plaintiff had judgment for the sum of $9,000 and from said judgment, defendant appeals.

There was but little conflict in the evidence and a brief summary of the facts will suffice. One of the sisters of the deceased, who had married plaintiff, died many yeare ago leaving five minor children as the issue of said marriage. At about the time of the death of plaintiff’s wife, another sister of said deceased, namely Eugenia Izuel, moved into the home of plaintiff to live with the family and to assist in caring for said minor children. She had previously stayed at said home of plaintiff, for months at a time, during the illness of plaintiff’s wife. In 1916 and while so living in plaintiff’s home, said Eugenia Izuel became ill, was operated upon and thereafter was a semi-invalid for the remainder of her life. She nevertheless was not helpless and she did many things for herself and she instructed and advised said minor children. She died in 1932. Antonio Izuel died in 1,935. The claim here involved was made by plaintiff against the estate of Antonio Izuel, deceased, for services performed in furnishing room, board and nursing care to said Eugenia Izuel from 1916 until the time of her death in 1932.

Antonio Izuel, deceased, was unmarried and he also lived in plaintiff’s home during a portion of said period. Plaintiff absented himself from his said home for more than a year during said period while on a trip to Mexico. At about the time of the death of Eugenia Izuel, said Antonio Izuel, deceased, built a home for himself and thereafter plaintiff and his family moved into and lived in the home of said Antonio Izuel, deceased. As the testimony of said Antonio Izuel could not be had by reason of his death and as the testimony of plaintiff was barred by the provisions of section 1880 of the Code of Civil Procedure, the only evidence offered concerning any agreement or understanding between said parties was rather indefinite and unsatisfactory. It appears that both plaintiff and the deceased, as well as the children of the plaintiff, had performed services for said Eugenia Izuel during the years in question; that both plaintiff and the deceased had purchased food used by the family group; that the deceased had paid the hospital and doctors’ bills of said Eugenia Izuel; that deceased had given money to plaintiff on many occasions and had also given plaintiff seventeen cheeks which checks totaled approximately $13'50. The testimony upon which plaintiff mainly relied was the testimony of certain children of plaintiff. This testimony related to conversations had between plaintiff and the deceased at various times during the 16-year period in which it. was claimed that the deceased “promised to pay my father out of his estate for Eugenia’s care” or as otherwise stated deceased said that the payment “for the services rendered to Eugenia would be at the time of his death whatever was left in his estate”. Timely objection was made to this testimony but it was admitted subject to a motion to strike. The motion to strike was thereafter made as well as a motion for nonsuit, but both motions were denied.

It appears appropriate to state the substance of the pleadings and the findings. Preliminarily it may be said that it is apparently conceded that plaintiff could not recover upon the claimed oral agreement as said oral agreement was invalid under the statute of frauds and that plaintiff’s cause of action, if any, was one for the reasonable value of the services performed. (Hagan v. McNary, 170 Cal. 141 [148 Pac. 937, L. R. A. 1915E, 562]; Trout v. Ogilvie, 41 Cal. App. 167 [182 Pac. 333]; Giles v. Reed, 44 Cal. App. 367 [186 Pac. 614] ; Civ. Code, sec. 1624, subd. 7; Code Civ. Proc., sec. 1973, subd. 6.) Plaintiff therefore did not directly allege the claimed oral agreement, but he did indirectly allege said oral agreement, presumably for the purpose of endeavoring to fasten liability upon the deceased for the services rendered to the sister and for the purpose of endeavoring to avoid the consequences of the application of the statute of limitations. The complaint was in the general nature of a common count but the exact nature of the allegations becomes important in the discussion which follows.

Plaintiff alleged that he furnished room, board and nursing care for said Eugenia Izuel for said period of approximately 16 years “at the special instance and request of said Antonio Izuel” and that the reasonable value of said services was $10,575. He further alleged, “That all of said services were rendered by said plaintiff to said Antonio Izuel as aforesaid, during all of said time, with the expectation on the part of said plaintiff, that he would be paid and that he should receive, and with the expectation and intention, on the part of said Antonio Izuel, that said plaintiff should be paid and that he should receive, reasonable compensation therefor, out of the estate of said Antonio Izuel, after his death”. He further alleged,1 That all of said services were rendered by said plaintiff to said Antonio Izuel, continuously during all of said time, pursuant to the instance and request of said Antonio Izuel, as aforesaid, and pursuant to the said mutual expectations of said plaintiff and said Antonio Izuel, and with the knowledge and approval of the said Antonio Izuel, and he accepted said services, and the benefits derived therefrom.” The findings followed closely the wording of the complaint except that the amount awarded was slightly less than that alleged.

It is difficult to determine from the complaint whether plaintiff was basing his claim against the deceased upon an alleged obligation implied in law, to wit: upon a quasi-contractual obligation, or upon an alleged obligation arising out of an agreement of the parties, to wit: upon a genuine contractual obligation. The pleading was no doubt drawn in the light of several decisions in each of which the claimant sought recovery against the estate of the deceased for services rendered by the claimant with respect to the deceased personally over a long period of time. (Mayborne v. Citizens T. & S. Bank, 46 Cal. App. 178 [188 Pac. 1034] ; Warder v. Hutchison, 69 Cal. App. 291 [231 Pac. 563] ; Robinson v. Chapman, 98 Cal. App. 278 [276 Pac. 1081] ; Lauritsen v. Goldsmith, 99 Cal. App. 671 [279 Pac. 168]; Colwell v. Gardner, 126 Cal. App. 403 [14 Pac. (2d) 825] ; Burr v. Floyd, 137 Cal. App. 692 [31 Pac. (2d) 402]; Manford v. Coats, 6 Cal. App. (2d) 743 [45 Pac. (2d) 395] ; Seib v. Mitchell, 10 Cal. App. (2d) 91 [50 Pac. (2d) 281]; Wax v. Adair, 16 Cal. App. (2d) 393 [60 Pac. (2d) 904]; Turell v. Anderson, 16 Cal. App. (2d) 445 [60 Pac. (2d) 906].) What is said in Lauritsen v. Goldsmith, supra, regarding the claim filed therein will demonstrate that plaintiff here was endeavoring “to steer a middle course” in order to avoid the consequences of the application of the statute of frauds and of the statute of limitations. It was there said at page 674, “Apparently the claim filed in the instant case avoided the consequences of relying on the ordinary contract implied by law as was done in the Etchas v. Orena case [127 Cal. 588, 60 Pac. 45] and at the same time avoided relying entirely upon the express promise to compensate by will, as did the claim in Giles v. Reed. The claim here is evidently framed to steer a middle course between these two eases and follows closely the language and findings of Mayborne v. Citizens T. & S. Bank, 46 Cal. App. 178 [188 Pac. 1034].”

Plaintiff relies upon the decisions above mentioned but we find none of them in point. In none of said eases was the invalid oral agreement admitted, over objection, for the purpose of imposing the original obligation which the invalid oral agreement purported to create. In each of said cases the services were performed with respect to and for the direct benefit of the deceased person and under such circumstances as to create an original obligation implied in law to pay the reasonable value of such services, which obligation arose independently of the terms of the invalid oral agreement. Recovery was therefore permitted upon such obligation implied in law rather than upon the invalid oral agreement. The most that can be said is that the use of the invalid oral agree-merit was permitted, over objection, for the limited purpose of showing that it was intended by the parties that some compensation should be paid for such services and that the time for payment should be a future time rather than monthly (Labor Code, sec. 3002; formerly Civ. Code, see. 2011), thereby preventing the running of the statute of limitations until such time had arrived. The soundness of the above-mentioned decisions has been questioned but it appears unnecessary to review said decisions here. It is only necessary to hold that the rule of said decisions may not be extended to permit a recovery in the instant case for the reasons hereinafter stated.

The services here were admittedly performed with respect to and for the direct benefit of Eugenia Izuel, the sister of the deceased. In other words, said services were not performed with respect to or for the direct benefit of the deceased or with respect to or for the direct benefit of any person as to whom the deceased owed a legal duty of support. Defendant therefore contends that plaintiff may not recover against the estate of the deceased upon the invalid oral agreement for the reasons hereinabove stated and that he may not recover upon an obligation implied in law as the law will not imply an obligation from the mere fact that the deceased may have requested plaintiff to perform services for a third person. In our opinion this contention must be sustained.

It appears to be well settled in this jurisdiction that where one person requests another to perform services for a third person, as to whom the first person owes no legal duty of support, any right of recovery against the first person must be based upon a valid agreement of the first person to pay for such services as the law will not imply an obligation on the part of such first person to pay for such services. (McClenahan v. Keyes, 188 Cal. 574 [206 Pac. 454] ; McClenahan v. Keyes, 65 Cal. App. 467 [224 Pac. 241]; Zumwalt v. Schwarz, 112 Cal. App. 734 [297 Pac. 608].) The same rule was enunciated in Bristol v. Sutton, 115 Mich. 365 [73 N. W. 424], where the agreement to pay for the services was invalid under the statute of frauds. The reason for the rule seems to be that the parties should ordinarily be required to rely upon their agreement and that in the absence of a valid agreement between the parties, the law will not imply an obligation unless the failure to imply such obligation will result in the unjust enrichment of the defendant. This is illustrated by certain decisions involving actions for money had and received. As was in said in Pollak v. Staunton, 210 Cal. 656 at page 665 [293 Pac. 26], “The action for money had and received is based upon an implied promise which the law creates to restore money which the defendant in equity and good conscience should not retain. The law implies the promise from the receipt of the money to prevent unjust enrichment. The measure of the liability is the amount received.” Recovery is denied in such cases unless the defendant himself has actually received the money. (Whittier v. Home Sav. Bank, 161 Cal. 311 [119 Pac. 92]; Papeschi v. La Cava, 93 Cal. App. 209 [269 Pac. 731].)

In some of the authorities, it is said that the obligation will be implied in law where the defendant has “received the benefit”. (Long v. Rumsey, 12 Cal. (2d) 334 [84 Pac. (2d) 146]; Woodward, Quasi-Contracts, sec. 104; Keener, Quasi-Contracts, pp. 278, 279.) Thus in Long v. Rumsey, supra, this court said at page 344, 1 c The only promise implied by law is a promise to pay based upon the equitable doctrine that the promisor, having received the benefit, should pay its reasonable value.” In that case the services were performed with respect to and for the direct benefit of the deceased himself and the language of said decision should not be construed to mean that an obligation will be implied in law where the direct benefit is received by a third party and the only benefit received by the defendant is the incidental benefit which he may find in the satisfaction of obtaining compliance with his request. (See Gazam v. Simpson, 114 Fed. 71; Henrikson v. Henrikson, 143 Wis. 314 [127 N. W. 962, 33 L. R. A. (N. S.) 534]; Kimmins v. Oldham, 27 W. Va. 258; Vanderhoef v. Parker Bros. Co., 267 Mich. 672 [255 N. W. 449].) The authorities on the subject are reviewed in an article in 44 Harvard Law Review, page 623, where it is said at page 624, “Where the part performance of a contract within the statute of frauds consists of property or services furnished to a third person, the courts generally do recognize the principle that recovery is dependent upon the defendant’s enrichment and deny g-uasi-contractual recovery.”

We are not unmindful of plaintiff’s claim that the above-mentioned authorities are inapplicable as the trial court found that the services furnished to Eugenia Izuel “were rendered by said plaintiff to said Antonio Izuel” and that said Antonio Izuel accepted “the benefits derived therefrom”. These findings, however, must be read in the light of the evidence and of the admitted facts. Only in the sense that said services were rendered at the request of Antonio Izuel, may it be said that they were rendered “to said Antonio Izuel” or that said Antonio Izuel accepted “the benefits derived therefrom”. The only benefit which could be referred to in the findings was the incidental benefit which said Antonio Izuel may have found in the satisfaction of obtaining compliance with his request and such incidental benefit was insufficient to create an obligation implied in law under the authorities last cited.

The judgment is reversed.

Shenk, J., Curtis, J., Knight, J., pro tem., Houser, J., and Edmonds, J., concurred.

Rehearing denied.


author: CARTER, J.

text:
    [S. F. No. 16310.
    In Bank.
    November 17, 1939.]
    ALICE M. SLEMONS et al., Respondents, v. LAURA C. PATERSON et al., Appellants.

      K. R. MeDougall for Appellants.
    Charles H. Sooy and Charles D. Sooy for Respondents.
   CARTER, J.

This is an appeal by defendants from an order granting plaintiffs’ motion for a new trial. While the notice of intention to move for a new trial contains all of the statutory grounds, it appears that the motion was granted solely upon the fifth ground stated in the notice, namely, newly discovered evidence.

The action was brought by plaintiffs on the 26th day of February, 1937, to recover a deficiency judgment after the sale of property under a deed of trust given to secure the balance of the purchase price thereof. The action was commenced four years and twenty-five days after the accelerated maturity of the note, which resulted from the filing for record in the recorder’s office' of a notice of default on January 31, 1933. The trial court rendered judgment for the defendants, who relied upon the four-year statute of limitations for actions on written instruments. (Sec. 337, subd. 1, Code Civ. Proc.)

Section 580a of the Code of Civil Procedure, and the 1933 amendment to section 337 of the said code, requiring actions for certain deficiency judgments to be brought within three months after the exercise of the power of sale, are not applicable here, since the sale took place before their effective date. (Christina v. Hightower, 22 Cal. App. (2d) 339 [70 Pac. (2d) 988]; Bank of America Nat. T. & S. Assn. v. Dennison, 8 Cal. App. (2d) 173 [47 Pac. (2d) 296].)

In support of their motion for a new trial, plaintiffs filed an affidavit in which they stated that since the trial they had discovered that defendant Malcolm G. Paterson had been absent from the State of California, for a period of more than twelve weeks, and Laura C. Paterson, his wife, for a period of more than forty days during the four-year period from the accelerated maturity date of the note until the commencement of the action, with the result that the action was not barred by the statute of limitations above mentioned. (See sec. 351, Code Civ. Proc.)

Plaintiffs also stated in their said affidavit that they had been advised by their attorney prior to the commencement of said action, that the statute of limitations on their right to sue for a deficiency judgment would not commence to run from the accelerated maturity date of the note, but from the original due date, in which event the action was brought in time. After judgment was entered against them, they changed attorneys. At the direction of their new attorney, they made inquiry and learned from an officer of the corporation by which defendant Malcolm G. Paterson was employed that he had been absent "from California, for more than twelve weeks during the four-year period immediately preceding the commencement of the action, and from the lessor of defendants’ residence, that defendant Laura C. Paterson had been absent from the State of California, for more than forty days during said period. Defendant Laura C. Paterson filed a counter-affidavit stating that she had not been absent from the state more than sixteen days during said period, but defendant Malcolm G. Paterson filed no counter-affidavit.

The only reason stated in plaintiffs’ affidavit for failing to discover and produce this evidence upon the trial, is that they did not know that the Patersons had been absent from the state during said period, and that prior to the time that they consulted their new attorney, neither of the plaintiffs knew of the relevancy of any such absence of defendants. This does not constitute a legal excuse for failure to discover and present the evidence at the trial. (Santa Cruz R. P. Co. v. Bowie, 104 Cal. 286 [37 Pac. 934]; Klockenbaum v. Pierson, 22 Cal. 160.) Plaintiffs do not claim that they could not have discovered the facts as well before the trial as after, had they been aware of their importance. In Looney v. Scott, 71 Cal. App. 308 [235 Pac. 76], the excuse given for failure to produce certain testimony at a previous trial, upon motion for a new trial on the ground of newly discovered evidence, was that the defendant was not advised that the testimony was admissible. The court held that the new trial was properly denied. Section 657, Code of Civil Procedure, makes no provision for a new trial on account of mistake of law of a party or his attorney. (Santa Cruz R. P. Co. v. Bowie, supra; Le Tourneux v. Gilliss, 1 Cal. App. 546 [82 Pac. 627]; Klockenbaum v. Pierson, supra; Fuller v. Hutchings, 10 Cal. 523 [70 Am. Dec. 746].) It seems clear in the case at bar that the plaintiffs’ affidavit is, as a matter of law, insufficient to support an order granting a new trial on the ground of newly discovered evidence.

While the granting or denial of a motion for a new trial upon the ground of newly discovered evidence is generally a matter within the discretion of the trial court, and such an order will be affirmed unless a clear abuse of discretion is shown, this rule has no application where the affidavit or other evidence upon which the order is made furnishes no basis for the exercise of sifch discretion. Such is the situation in the case at bar. The affidavit of plaintiffs is so lacking in essential particulars that it afforded no basis for the exercise of the discretion of the trial court in granting the motion.

It is further argued that plaintiffs should not be bound by their failure to produce this evidence at the trial for the reason that the defendants themselves knew the facts relating to their absence from the state during the period in question. This would not excuse plaintiffs from their failure to exercise due diligence to procure the evidence prior to the trial. (Butler v. Vassault, 40 Cal. 74.) It does not appear from plaintiffs’ affidavit that they made any effort whatever to obtain the evidence prior to the trial. If the evidence had been obtained and presented, the issues presented by the pleadings could have been finally determined without further delay or additional expense to the parties. It is a matter of public interest that there be an end to litigation and that a new trial should not be granted for the purpose of enabling a party to produce further evidence unless he has shown some legally justifiable excuse for not having produced such evidence at the former trial. (Sec. 657, subd. 4, Code Civ. Proc.) The affidavits supporting the motion must show that there has been no lack of diligence. (Estate of Cover, 188 Cal. 133, 149 [204 Pac. 583]; People v. Byrne, 160 Cal. 217, 225 [116 Pac. 521] ; Maunder v. Pozzo, 175 Cal. 740 [167 Pac. 145] ; Smith v. Schwartz, 14 Cal. App. (2d) 160, 166 [57 Pac. (2d) 1386]; Vertson v. City of Los Angeles, 116 Cal. App. 114, 119 [2 Pac. (2d) 411].)

Furthermore, plaintiffs should have filed the affidavit of the employer of defendant Malcolm 6. Paterson and of the lessor of defendants’ residence, instead of their own affidavit of facts learned from said persons, or have given a reason for their failure to file such affidavits. (People v. Neal, 27 Cal. App. (2d) 655 [81 Pac. (2d) 593] ; Smith v. Schwartz, 14 Cal. App. (2d) 160, 167 [57 Pac. (2d) 1386]; Norman v. de Botiller, 95 Cal. App. 336 [272 Pac. 613] ; Arnold v. Skaggs, 35 Cal. 684; 1 Cal. Jur. 655.)

In view of our conclusion that the order granting plaintiffs’ motion for a new trial must be reversed, because of the insufficiency of the affidavit upon which the order granting the motion was based, it becomes unnecessary to consider the other points raised by appellants, or their appeal from the order denying their motion to vacate the new trial order and from certain other orders made following the new trial order. (Chase v. Trout, 146 Cal. 350, 372 [80 Pac. 81].) The order granting a new trial is reversed, appellants to recover costs. The appeal from all other orders is dismissed.

Houser, J., Curtis, J., Shenk, J., Gibson, J., Waste, C. J., and Edmonds, J., concurred.

Rehearing denied.


author: SHENK, J.

text:
    [Crim. No. 4227.
    In Bank.
    November 20, 1939.]
    THE PEOPLE, Respondent, v. ANTHONY STRALLA et al., Defendants; HAROLD ADAMS, Appellant.

      Joseph L. Fainer, Chauncey Tramutolo, Samuel L. Hummel, Louis P. Pink, Jerry Giesler and George M. Naus for Appellant.
    Ben L. Blue, as Amicus Curiae, on Behalf of Appellant.
    Earl Warren, Attorney-General, Bayard Rhone, Deputy Attorney-General, Buron Fitts, District Attorney, and A. H. Van Cott, J. J. Sullivan and Thomas F. O’Brien, Deputies District Attorney, for Respondent.
    Frank E. Hinckley, Ben Harrison, United States Attorney, and Irl Brett, Assistant United States Attorney, as Amici Curiae, on Behalf of Respondent.
   SHENK, J.

The grand jury of the county of Los Angeles returned an indictment against the defendant Adams and others, charging the violation of subdivision 2, section 337a, of the Penal Code. The specific accusation was the keeping and operating of the gambling ship “Rex” anchored in the waters of what is known as Santa Monica Bay, at a point four miles oceanward from the end of the municipal pier of the city of Santa Monica and approximately six miles landward from a line drawn between the headlands, Point Vicente on the south and Point Dume on the north. The defendant Adams appealed from the judgment of conviction and from the order denying his motion for a new trial.

There is no dispute as to the sufficiency of the evidence to support the jury’s verdict if the offense was committed within the jurisdiction of the state. The appeal presents the single question whether the territorial jurisdiction of the State of California extends over the area of the waters known as Santa Monica Bay. If it does, an affirmance of the judgment will be required.

The territorial boundaries of the state were defined in the Constitution of California of 1849, article XII, section 1, which fixed the ocean boundary of the state as: “thence running west ... to the Pacific Ocean and extending therein three English miles; thence running in a Northwesterly direction and following the direction of the Pacific Coast to the forty-second degree of north latitude; thence on the line of said forty-second degree of north latitude to the place of beginning. Also, including all the islands, harbors, and bays along and adjacent to the coast.” That language was readopted in the Constitution of 1879, section 1, article XXI, without substantial change. Section 33 of the Political Code enacted in 1872 provides that the sovereignty and jurisdiction of this state extends to all places within its boundaries as established .by the Constitution, subject to qualification in cases where jurisdiction has been ceded to or acquired by the United States Government.

The immediate problem for .solution is whether the waters commonly known as Santa Monica Bay were intended to be included within the designated territorial boundary. The answer comprehends not one, but several factors, namely: Is this body of water a bay geographically? Is it a bay historically ? Is it a bay legally ?

For the purpose of considering those factors this court may examine historical data and maps, public papers and records, and may take judicial notice of such geographical, historical and political data even though the same have not been introduced in evidence in the trial court. (Code Civ. Proc., sec. 1875; Rogers v. Cady, 104 Cal. 288 [38 Pac. 81, 43 Am. St. Rep. 100] ; Varcoe v. Lee, 180 Cal. 338, 343 [181 Pac. 223].)

The waters known as Santa Monica Bay lie in an indentation of the California coast between Point Vicente and Point Dume. The points are distant from each other about 25 nautical miles or about 29 statute miles. The line of the coast forms a curve inward to a distance of about ten miles from a line drawn between the headlands. The line of the shore recedes slightly from Rocky Point, which is to the north of Point Vicente, making the distance between shores landward from Point Dume and Rocky Point greater than the distance between those two points. Otherwise the bay is widest between Point Vicente and Point Dume.

The foregoing geographic description appears to conform to the definition of a bay. Funk & Wagnalls New Standard Dictionary defines “bay” as “an indentation in the shoreline of a body of water; the water between two projecting headlands; sometimes, an arm of the sea connecting with the ocean”. We find in Webster’s International Dictionary: “An inlet of the sea, usually smaller than a gulf, but of the same general character. The name is used, often for large tracts of water, around which the land forms a curve, or for any recess or inlet between capes or headlands; as, tbe Bay of Biscay; Hudson Bay.” The Oxford English Dictionary (1933) gives: “An indentation of the sea into the land with a wide opening." The Encyclopedia Brittanica, eleventh edition: "A wide opening or indentation in a coast line. This may be of the same origin as ‘bay’, in the architectural sense, or from a Latin word which is seen in the place named Baiae.” “A bay is a bending or curving of the shore of a sea or of a lake, and is derived from an Anglo-Saxon word signifying to bow or bend. "For a similar reason the word bay is in Latin termed sinus, which expresses a curvature or recess in the coast.” (State v. Town of Gilmanton, 14 N. H. 467, 477.) A visual illustration of the outline of the land surrounding the waters known as Santa Monica Bay, and of the land and waters constituting San Pedro Bay, is reproduced herein from a portion of a map designated as “United States—West Coast California, San Diego to Santa Rosa Island” (geodetic survey charts numbers 5144 and 5147), with lines drawn between headlands added. The waters known as San Pedro Bay extending from Point Fermín to the city of Huntington Beach, formerly called Point Lasuen, have been judicially declared to be a “bay.” (United States v. Carrillo, 13 Fed. Supp. 121.) This map serves to give an easy and affirmative answer to the question whether the waters known as Santa Monica Bay are geographically a bay. Visually, if one of these bodies of water is a bay geographically, the other would seem also to be a bay.

Historically it appears that both Cabrillo (in 1542) and Viscaino (1603) noted this body of water as “Gran Ensenada” or “Grand Bay” (Bancroft’s Works, vol. 18, History of California, vol. 1, 1541-1800, p. 71; Paulen’s Atlas of Historical Geography of the United States, plate No. 17). Both Spain and Mexico claimed and exercised exclusive jurisdiction over the waters of this coast as far as the mouth of the Columbia River, for a distance of ten leagues into the ocean, and such claim was confirmed by treaty with Great Britain in 1790. (See Ocean Industries, Inc., v. Superior Court, 200 Cal. 235, 242 [252 Pac. 722].)

Historians refer to the waters as Santa Monica Bay (Ingersoll’s Century History of Santa Monica Bay Cities, p. 121; Charles Sumner Warren, History of Southern California; California Blue Book, 1932, p. 520.) They indicate that the bay received its present name probably earlier than 1827, and that the city of Santa Monica was named later. RandMcNally & Co.’s Atlas of the World (United States, 1908, p. 277), contains the following statement: “The sea-coast of California extends the entire length of the State and is indented by many bays and harbors, that of San Francisco being the finest on the Western coast, nearly fifty miles long and about nine miles wide. Other bays or harbors of importance are San Diego, San Pedro, Santa Monica, Santa Barbara, San Luis Obispo, Monterey, Tómales, Bodega, and Humboldt. ’ ’

Before 1872 “Shoo Fly Landing” on Santa Monica Bay afforded shipping facilities for the La Brea rancho. (Ingersoll, Century History of Santa Monica Bay Cities, p, 141.) The same writer, states (pp. 144, 145) that in 1875, in conjunction with the construction of a railroad, a new wharf, 1700 feet in length, reaching a depth of 30 feet at low tide, was completed and the first ship landed at this wharf in June of that year. Collis P. Huntington, about 1892-1893, was instrumental in building the “Long Wharf”, 4600 feet, at a cost of about $1,000,000. (Newmark, Sixty Years in Southern California, 1853-1913.) Guinn’s Historical and Biographical Record of Southern California (printed 1902, p. 139 et seq.), states facts showing the importance of Santa Monica as a shipping point.

The long struggle to obtain funds to establish a breakwater in either of Santa Monica or San Pedro Bays as a port for Los Angeles, which ended in the selection and establishment of the port in San Pedro Bay, has become part of historical Californiana. (Article “The Battle for Southern Pacific Ports”, by Lanier Bartlett, in “Westways”, August, 1935, pp. 26-29.)

The defendant quotes the following from the United States Coast Pilot, issued by the United States Department of Commerce under the supervision of the Coast and Geodetic Survey, page 57: “From Point Vicente to Point Dume, about 25 miles, the coast forms a broad open bight about ten miles wide known as Santa Monica Bay”. He thus argues that an open bight is not a bay within the accepted terminology of Avhat constitutes a bay. But we are also referred to the statement in the same survey that “Monterey Bay ... is a broad, open bight, twenty miles long, between Point Pinos and Point Santa Cruz, and nine miles wide ...” Monterey Bay was determined to be territorial waters in the case of Ocean Industries, Inc., v. Superior Court, 200 Cal. 235 [252 Pac. 722].

The defendant contends that a body of water which may answer the definition of a bay, does not constitute a bay unless it also affords protection and safe anchorage to vessels engaged in shipping, and that Santa Monica Bay does not offer the advantages of a harbor. The evidence and the historical facts do not support the statement. The defendant refers to the discussion before the 54th Congress, 1896, as indicating a lack of secure refuge in Santa Monica Bay. But the evidence there produced does not necessarily negative the characteristics of Santa Monica as a bay or a harbor. The controversy centered on the problem of which bay, Santa Monica or San Pedro, was the better site for the project of establishing a port for Los Angeles.

In a history of the Los Angeles Harbor district, compiled by Ella A. Ludwig and published by the Historical Record Company, Inc. (California), referring to the report of the board of engineers appointed to investigate the question of which bay was the more eligible location for such a harbor, it is stated: “There was a lengthy and full comparison of the two places, Santa Monica and San Pedro. On the comparative advantages for arrival and departure, the board held that there was no essential difference between the sites of San Pedro and Santa Monica. The question of distance from Los Angeles was declared to be unimportant ... On the question of construction, after going into all details, it was declared in substance that the cost of San Pedro would be much less than at either of the locations suggested at Santa Monica”. The fact that San Pedro Bay was finally selected does not refute the evidence of use of Santa Monica Bay as a harbor. Nor is the fact that Santa Monica Bay affords less protection from northwesterly winds a controlling consideration. San Pedro Bay, situate on the southerly curve of the peninsula or projection of land formed by Point Vicente and Point Fermín, is open to southeasterly gales, as to which Santa Monica Bay, along the northerly curve of that peninsula, affords protection. Leading into the latter curve in Santa Monica Bay, a deep canyon, known as Redondo Canyon, provides passage for ships almost to the breakwater line along Redondo beach. Also, oceanward and to the northwest of Santa Monica Bay lie the islands of Santa Cruz and Santa Rosa; and to the southwest, Catalina and San Clemente Islands. The position of the islands undoubtedly affords some protection against gales coming from their direction. In his Century History of Santa Monica Bay Cities, chapter 1, page 121, Ingersoll notes that “the waters of this bay are ordinarily quiet since the forcé of the waves is broken by the seaward islands and the deep, recessed position of the shoreline”. Moreover, the “Rex”, which has no motive power of its own, has been anchored at the same point in Santa Monica Bay for the past five or six years. If the question whether Santa Monica Bay is a harbor were important in the solution of the problem presented, the foregoing fact would tend strongly to refute the contentions of the defendant that Santa Monica Bay, as a harbor, is not within the territorial waters of the state.

In discussing the legal sources on the question of what constitutes a bay, the defendant places reliance upon the case of United States v. Morel, 26 Fed. Cas. 1310, No. 15,807, wherein a distinction was made between high seas, and roads, harbors and ports. After noting the distinctions made by Lord Hale in the fourth chapter De Jure Maris, the court said: “We see here a clear and reasonable distinction taken between the main sea or ocean, and such parts of its waters as may flow into places so situate and secured by the circumjacent land as to afford a harbor or protection for vessels from the winds, which make the sea dangerous. The open sea, the high sea, the ocean, is that which is the common highway of nations, the common domain, within the body of no country, and under the particular right or jurisdiction of no sovereign, but open, free, and common to all alike, as a common and equal right”. And, quoting from Lord Hale, the court continued “The expression [high seas] describes the open ocean where the dominion of the winds and waves prevails without check or control. Ports and harbors, on the contrary, are places of refuge in which protection and shelter are sought, within the enclosures and projections of land.” It is obvious that the extent of the harborage offered by the places so described will vary; but mere variations which become apparent in making comparisons with other harbors may not preclude judicial recognition of Santa Monica Bay as a harbor, in view of its geographic conformation and the history of its uses as such.

Furthermore it does not appear that the law of nations defines, circumscribes or restricts the character of a body of water which may be included within the territorial boundaries of a country in accordance with the defendant’s contentions. Many writers and courts have dealt with the question of what arms of the sea washing its coast may constitute the territorial waters of a sovereign state. It is now uniformly agreed that adjacent waters to the distance of three miles or a marine league are territorial waters subject, however, to the right of innocent passage by foreign ships. (Moore, International Law Digest, vol. 1, pp. 698 et seq; The Marianna Flora, 11 Wheat. (24 U. S.) 1 [6 L. Ed. 405] ; The Ann, 1 Fed. Cas., p. 926, No. 397; In re Marincovich, 48 Cal. App. 474, 477 [192 Pac. 156].) The prevailing claims of territorial jurisdiction over bordering waters and enclosed arms of the sea represent a diminution of the exclusive sovereignty over large bodies of water, such as the Adriatic, the Gulf of Genoa, the North Sea, and the Baltic Sea, which in earlier days were closed seas. ‘ Thenceforward the progress of maritime jurisdiction was reversed—from mare clausum to mare liberum. And the Sovereignty allowed by International law over portions of the sea is in fact a decayed and contracted remnant of the authority once allowed to particular states over a great part of the known sea and ocean. . . . The English claims dwindled to claims over territorial water close to the coast, and over portions of the sea interposed between promontory and promontory known as the King’s Chambers, and over the whole of the narrow seas for ceremonial purposes.” (Maine, International Law, 77, 79; see also Maxey, International Law, p. 228 et seq.) The latter authority says: “That the jurisdiction of a state over its marginal waters rests upon international rather than municipal law seems to admit of little doubt;” but he at the same time admits that there is no room for doubt that there exists the right to exercise such jurisdiction, and that the only dispute is as to the extent of it.

What are territorial waters for the purpose of excluding foreigners from exercising unregulated fishing privileges therein has generally been the subject of convention between nations. (See Moore, supra, p. 716 et seq.; note 46 L. R. A., p. 270.) In 1884 (150 MS Dom. Let. 6; Moore, supra, p. 718), Mr. John Davis, assistant secretary of state, in a reply concerning the subject of whale fishing off Bahia Bay on the Brazilian coast, expressed the following: “The general law and rule is understood by this Government to be that beyond the marine league or three-mile limit, all persons may freely catch whale or fish. In computing this limit, however, ‘bays’ are not taken as a part of the high seas; the three miles must be outside of a line drawn from headland to headland.’”

It is of important significance that our state legislature has designated nearly the entire area of Santa Monica Bay as state territory for the purpose of regulating fishing privileges in those waters (Fish and Game Code, Stats. 1929, p. 1181, Stats. 1933, p. 394, sec. 88), and has thus asserted the jurisdiction of the state for that purpose in and over the waters wherein the “Rex” is anchored.

One of the rights which it is stated justifies the doctrine of the territoriality of adjacent waters, is the right to exercise “surveillance of ships which enter those waters, whether passing through or stopping there ... in order to guarantee the efficient police and the development of the political, commercial, and fiscal interests of the bordering state”. (Moore, Digest of International Law, supra, pp. 698, 699.) Such right exercisable in adjacent waters would necessarily also be appropriate in territorial bays, harbors and inlets. The same authority indicates that the headland doctrine has received some limitation when the question has become the subject-matter of convention between nations. The three-mile limit applicable to adjacent waters was in some instances taken as restricting other coastal territorial waters to those inlets having an entrance six miles or two marine leagues in width. (See Commonwealth v. Manchester, [1890] 152 Mass. 230 [25 N. E. 113, 23 Am. St. Rep. 820, 9 L. R. A. 236]; Manchester v. Commonwealth, 139 U. S. 240 [11 Sup. Ct. 559, 35 L. Ed. 159]; Mahler v. Norwich & New York Transportation Co., 35 N. Y. 352, 355.) A ten-mile headland doctrine has been asserted (Moore, supra, p. 720.) In 1896, when the extension of the territoriality of adjacent waters from one to two marine leagues was a subject of diplomatic conversation, Mr. Richard Olney, secretary of state, observed that “an extension of the headland doctrine, by making territorial all bays situated within promontories twelve miles apart instead of six, would affect bodies of water now deemed to be high seas and whose use is the subject of existing conventional stipulation”. (Moore, supra, p. 735.)

Prior to that time, however, the United States had asserted jurisdiction over the waters of Delaware Bay. (Opinion of the Attorney-General, Edmund Randolph, 1793, Am. State Pap. For. Rel. L. 148; 1 Op. At. Gen. 32; Emory v. Collings, 1 Harr. [Del.] 325, 326.) The opinion of the attorney-general was concerned with the question whether the brig “ Grange” was seized within territorial waters of the United States. The attorney-general quoted from and discussed the opinions of early text writers as authority for his conclusion that such waters were territorial, and then made this statement: ‘ ‘ These remarks may be enforced by asking, What nation can be injured in its rights, by the Delaware being appropriated to the United States ? And to what degree may not the United States be injured, on the contrary ground? It communicates with no foreign dominion; no foreign nation has, ever before, exacted a community of right in it, as if it were a main sea; under the former and present governments, the exclusive jurisdiction has been asserted. ...”

Bristol Channel was held to be British territorial waters. (Reg. v. Cunningham, [1859] Bell’s C. C. 72, 86.) Conception Bay on the coast of Newfoundland, having an average width of fifteen miles with the distance between the headlands more than twenty miles, has also been declared to be British territorial waters. (Direct United States Cable Co. v. Anglo-American Telegraph Co., [1877] L. R. 2 App. Cas. 394.) In the course of the opinion in that case it was said: “Passing from the Common Law of England to the general law of nations, as indicated by the text writers on international jurisprudence, we find an universal agreement that harbours, estuaries, and bays land-locked belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to determine what is ‘bay’ for this purpose.

‘ ‘ It seems generally agreed that where the configuration and dimensions of the bay are such as to shew that the nation occupying the adjoining coasts also occupies the bay it is part of the territory; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation; some suggesting therefore a width of one cannon shot from shore to shore, or three miles; some a cannon shot from each shore, or six miles; some an arbitrary distance of ten miles. All of these are rules which, if adopted, vrould exclude Conception Bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain that part of the Bristol Channel which in Reg. v. Cunningham (Bell’s Cr. C. 72) was decided to be in the county of Glamorgan. On the other hand, the diplomatists of the United States in 1793 claimed a territorial jurisdiction over much more extensive bays, and Chancellor Kent, in his Commentaries, though by no means giving the weight of his authority to this claim, gives some reasons for not considering it altogether unreasonable.

“It does not appear to their Lordships that jurists and text writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts; and it has never, that they can find, been made the ground of any judicial determination. If it were necessary in this case to lay down a rule the difficulty of the task would not deter their Lordships from attempting to fulfil it. But in their opinion it is not necessary so to do. It seems to them that, in point of fact, the British Government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to show that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country would be very important. And moreover (which in a British tribunal is conclusive) the British Legislature has by Acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland. ’ ’

On the other hand, we may note that by treaty between the United States and Great Britain, it was settled that the former government has no exclusive jurisdiction in the waters of Behring Sea outside of the three-mile limit. (27 Am. L. Rev. 703; La Ninfa, 75 Fed. 513.)

Chesapeake Bay, with an entrance of twelve miles between the headlands, was declared to be territorial waters. (Second Court of Commissioners of Alabama Claims, Stetson v. United States, No. 3993, Class 1. See Moore, Digest of International Law, vol. 1, p. 742.) It was there said: “Considering, therefore, the importance of the question, the configuration of Chesapeake Bay, the fact that its headlands are well marked, and but twelve miles apart, that it and its tributaries are wholly within our own territory. . . . ; that from the earliest history of the country it has been claimed to be territorial waters, and that the claim has never been questioned; that it cannot become the pathway from one nation to another; and remembering the doctrines of the recognized authorities upon international law, as well as the holdings of the English courts as to the Bristol Channel and Conception Bay, and bearing in mind the matter of the brig Grange and the position taken by the Government as to Delaware Bay, we are forced to the conclusion that Chesapeake Bay must be held to be wholly within the territorial jurisdiction and authority of the Government of the United States and no part of the ‘high seas’ within the meaning of the term as used in section 5 of the act of June 5, 1872.”

In Manchester v. Massachusetts, 139 U. S. 240, at page 264 [11 Sup. Ct. 559, 35 L. Ed. 159], the Supreme Court of the United States said: ‘‘The extent of the territorial jurisdiction of Massachusetts over the sea adjacent to its coast is that of an independent nation; and except so far as any right of control over this territory has been granted to the United States, this control remains with the State. . . . The statutes of the United States define and punish but few offences on the high seas, and, unless other offences when committed in the sea near the coast can be punished by the States, there is a large immunity from punishment for acts which ought to be punishable as criminal. Within what are generally recognized as the territorial limits of States by the law of nations, a State can define its boundaries on the sea and the boundaries of its counties; and by this test the Commonwealth of Massachusetts can include Buzzard’s Bay within the limits of its counties.” Therefore the ‘‘jurisdiction of the State of California over the sea is that of an independent nation” (Humboldt Lumber Manufacturers’ Assn. v. Christopherson, 73 Fed. 239 [19 C. C. A. 481, 44 U. S. App. 434, 46 L. R. A. 264, 282]), with the right to decide and prescribe its own boundaries.

The extent of territorial jurisdiction is primarily a question for the law-making power. (See note 46 L. R. A., p. 268.) In the ease entitled La Ninfa, 75 Fed. 513, 518, it was said that in such controversies doubtful questions not thus decided are beyond the sphere of judicial cognizance and must be met by the appropriate department of the state. It is true that the legislature has not expressly designated the boundaries of the state. But the fundamental law (Const., art. XXI, sec. 1) has declared that the territorial bounds of the state shall include the bays and harbors along its coast; and in enacting the Pish and Game Code the legislature has followed the constitutional declaration in respect to the waters of Santa Monica Bay. Moreover, it is doubtful whether the legislature, in view of the constitutional section, could renounce a right of territorial domain or abdicate any rights of dominion over waters which for a period of at least 400 years have been considered to be a bay, and over which the state has exercised territorial jurisdiction. (Ocean Industries, Inc., v. Superior Court, 200 Cal. 235 [252 Pac. 722]; Mahler v. Norwich & N. Y. Transp. Co., 35 N. Y. 352.) And certainly this court will not presume to do what the legislature could not do. What was said in the case of Ocean Industries, Inc., v. Superior Court, supra, also serves to refute any inferences which might otherwise be considered to flow from legislative acts fixing the boundaries of Los Angeles County and the city of Santa Monica. (See Stats. 1850, p. 59; Muchenberger v. City of Santa Monica, 206 Cal. 635, 638 [275 Pac. 803].) In the absence of any controlling legislative or executive act or judicial decision, the court will look to the international law, namely, the customs and usages of civilized nations. (The Paquete Habana, 175 U. S. 677, 700 [20 Sup. Ct. 290, 44 L. Ed. 320].) But resort to the law of nations does not disclose any agreed definition of what constitutes a bay which may be included within the territorial waters of a state. (See, also, Ocean Industries, Inc., v. Superior Court, supra, p. 246.) On the contrary, as the foregoing discussion indicates, the usage and custom appears to be established to the effect that where, as here, the facts are that the bay is not and cannot become a pathway between nations; that exclusive jurisdiction has been asserted under both the present and former governments; that it has been recognized as a bay and as a harbor within the territorial boundaries of the state as prescribed by the law of the land, the courts have decided in accordance with the jurisdictional claim.

That a state has policing jurisdiction over its territorial waters may be said to be settled by the authorities herein cited. (See, also, Cunard S. S. Co. v. Mellon, 262 U. S. 100 [43 Sup. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306].) In that case it was said: “It now is settled in the United States and recognized elsewhere that the territory subject to its jurisdiction includes the land areas under its dominion and control, the ports, harbors, bays and other enclosed arms of the sea along its coast and a marginal belt of the sea extending from the coast line outward a marine league, or three geographic miles. . . . ‘The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an' investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation, within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source.’ ” (Quoting from opinion of Chief Justice Marshall, in The Exchange v. M’Faddon, 7 Cranch, 116, 136 [3 L. Ed. 287].)

In line with the foregoing considerations the Bay of San Pedro (United States v. Carrillo, 13 Fed. Supp. 121), and Monterey Bay (Ocean Industries, Inc., v. Superior Court, 200 Cal. 235 [252 Pac. 722]), have been judicially recognized as territorial waters of the state. There is not such a difference between the configuration and expanse of those bays and of Santa Monica Bay as would compel the invocation of the “rule of reason” referred to in the Carrillo ease, for the purpose of rejecting the contention that Santa Monica Bay is within the territorial boundaries of California. That rule of reason does not persuade us to conclude that the waters of Santa Monica Bay, per se, beyond three miles from the shore, constitute a part of the open or high seas. We are not here concerned with a body of water comparable to the Behring Sea, or to the Gulf of Mexico mentioned as an example in the Carrillo ease.

We conclude that geographically the waters known as Santa Monica Bay conform to the definition of a bay; that historically for a period of at least 400 years they have been known as a bay and during a large portion of that period have been used as a harbor; that the claimed jurisdiction of the executive department of the state is in conformity with the law of nations; therefore, that Santa Monica Bay is one of the bays and harbors included within the territorial boundaries of the state by the Constitution. It follows that the jurisdiction of the state extends over the waters of Santa Monica Bay landward from a line drawn between its headlands, Point Vincente and Point Dume, and at least for a distance of three miles oceanward from that line, and that such jurisdiction may be exercised by the state for all proper purposes including the prosecution of violators of the penal laws of the state.

The judgment and the order are and each is affirmed.

Curtis, J., Waste, C. J., Gibson, J., and Carter, J., concurred.

Houser, J., did not participate in the foregoing decision.


text:
    [S. F. No. 16283.
    In Bank.
    November 21, 1939.]
    LAWRENCE G. BECKETT, Plaintiff and Appellant, v. CITY OF PARIS DRY GOODS COMPANY (a Corporation), Defendant and Appellant.

      Dinkelspiel & Dinkelspiel and David K. Lener for Plaintiff and Appellant.
    Dean Cunha, Daniel R. Shoemaker and Harry I. Stafford for Defendant and Appellant.
   EDMONDS, J.

In this case, the court is called upon to determine whether a contract made by the parties is a lease or only a license to occupy certain property. The plaintiff recovered damages for unlawful eviction, but the trial judge refused to allow certain amounts claimed and each of the parties has appealed from the judgment.

The defendant agreed in writing with the plaintiff, who is an optometrist, that the latter might, for a period of three years, conduct a first-class optical department in its large store. The space to be occupied at any time was to be designated by the defendant, which was to supply all light, heat, water, telephone and elevator service. Dr. Beckett agreed to furnish equipment, fixtures and show-eases conforming in style and finish with those used in the store, and to pay it twenty per cent of his total monthly sales as consideration for the right to do business upon the conditions stated. It was further stipulated that all money taken in by Dr. Beckett should be deposited with the cashier of the City of Paris at the end of each day, and that the latter would later render a statement to him showing the balance of his account after deduction of amounts chargeable to him for rental, advertising, and uncollectible bills.

By the terms of the contract Dr. Beckett was required to purchase merchandise in his own name and upon his own credit, and he agreed to provide liability insurance indemnifying the store against liability arising because of his negligence or that of his employees. Other provisions are that he “cannot assign this lease or any interest therein” without the written consent of the dry goods company and that “on the last day of the term created hereby”, he will “forthwith quietly and peaceably surrender and yield up unto the . . . [department store] any occupied premises”.

Following the execution of this agreement, Dr. Beckett took possession of several rooms designated by the City of Paris and occupied them for more than two years. • The store then notified him that it was cancelling the agreement because of asserted violation of the provision requiring the deposit of receipts with its cashier, and it requested that he vacate on the evening of December 7th. This date was later postponed for three weeks, but immediately thereafter all of the plaintiff’s instruments and merchandise were taken out of his rooms and he was excluded therefrom.

The department store contends that its agreement gave Dr. Beckett only a license to use the premises, and that the contract could, therefore, be terminated for just cause at any time. In support of its position, the defendant points out that no definite space was set apart for Dr. Beckett to occupy, and that it was given control of his business in matters of advertising policy and the keeping of accounts. By the terms of the contract, Dr. Beckett also agreed to discharge any employee who should “become objectionable” to the store. Under these circumstances, says the City of Paris, it is obvious that the parties intended the optical department to be an integral part of the store which Dr. Beckett had only a license to manage and operate; hence it had the right to terminate that license at any time and to exclude him from the premises.

A lease is both a contract and a conveyance; under such an agreement there are rights and obligations based upon the relationship of landlord and tenant as well as upon the contractual promises. (Realty & Rebuilding Co. v. Rea, 184 Cal. 565 [194 Pac. 1024]; Samuels v. Ottinger, 169 Cal. 209 [146 Pac. 638, Ann. Cas. 1916E, 830] ; Tiffany, Landlord and Tenant, sec. 16.) It is well recognized that no particular legal terminology is required in the making of a lease, but it is essential that the instrument show an intention to establish the relationship of landlord and tenant. (Baranov v. Scudder, 177 Cal. 458 [170 Pac. 1122] ; Morris v. Iden, 23 Cal. App. 388 [138 Pac. 120].)

Although Dr. Beckett agreed to conduct his business in accordance with the policy of the store, to do his billing through the company’s office, to discharge employees who were objectionable to the company, and to cooperate in other matters, there are other provisions in the agreement which definitely point to an intention that the relationship between them should be that of lessor and lessee. For example, the agreement provides that “the designated space shall be delivered to second party in good, tenantahle condition”, and that Dr. Beckett shall have “the sole and exclusive right to conduct the optical department”. It also bound Dr. Beckett, in terms common to leases, “to pay as a monthly rental a sum equivalent to twenty per cent (20%) of the total monthly sales of said department”. Also, not only do the parties use the term “lease” in their agreement but the provision which forbids assignment without the consent of the department store is not applicable to a license, which is “a personal, revocable and unassignable permission to do one or more acts on the land of another without possessing any interest therein. ... A license, because it is personal, is incapable of being assigned by the licensee”. (Eastman v. Piper, 68 Cal. App. 554 [229 Pac. 1002].)

Moreover, throughout the whole instrument, rights are given and language is used which definitely indicates that a lease was intended. The phrases “good, tenantable condition”, “cannot assign this lease”, “space demised”, and “monthly rental” are the terminology of a lease. The use of these words is not conclusive of intention (Morris v. Iden, supra) but strongly indicates that the parties contemplated such a relationship. Nor does the retention by the store of a certain amount of control over the management of the optical department, or the requirement that Dr. Beckett adhere to the rules and regulations governing its operations, negative this intention.

A lease must include a definite description of the property leased and an agreement for rental to be paid at particular times during a specified term. (Losson v. Blodgett, 1 Cal. App. (2d) 13 [36 Pac. (2d) 147].) Yet, where one goes into possession of premises under a contract containing an ambiguous or uncertain description of property to be occupied and pays the stipulated rent, it will be enforced as a lease if the parties acted upon it.as relating to particular premises. (Baranov v. Scudder, supra; Merchants’ Nat. Bank v. Weston, 34 Cal. App. 693 [168 Pac. 587].)

When the litigants made their contract, they stated only that “the space to be occupied by said [optical] department at any time” was to be designated by the City of Paris, and “shall be delivered to . . . [Dr. Beckett] in good tenantable condition ’ ’. This provision is not inconsistent with the requirements of a lease and in cases which have arisen under facts strikingly similar to those in the present controversy it has been held that an agreement under which an owner of real property allows another to conduct his own separate business in a stall or section of a store or lot creates the relationship of landlord and tenant rather than licensor and licensee. (Herman v. Rohan, 37 Cal. App. 678 [174 Pac. 349] ; Smith v. Royal Ins. Co., 93 Fed. (2d) 143; In re Owl Drug Co., 12 Fed. Supp. 439.)

Both parties agree that if the agreement is a lease, violations of the requirement for all money received to be turned in at the end of each day are not sufficient to justify a forfeiture of it. This is the correct construction of their contract and the plaintiff is, therefore, entitled to recover upon his cause of action for eviction.

Passing to a consideration of the points presented by Dr. Beckett upon his appeal from the judgment, he first challenges the conclusion of the trial judge concerning the amount of his actual damages. It is undisputed that during the year immediately preceding his eviction, his average monthly earnings were $259.61. As he was evicted three months before the expiration of his lease, he is entitled to the sum of $778.83 for loss of profits instead of $666 allowed as actual damages. Also, the defendant does not deny that Dr. Beckett expended $35 for the removal of his furniture and equipment. This sum is recoverable by him. (Klein v. Lewis, 41 Cal. App. 463 [182 Pac. 789].)

Another contention of Dr. Beckett is that he is entitled to damages for loss of good will. Although such damages may be recoverable under certain circumstances (Landon v. Hill, 136 Cal. App. 560 [29 Pac. (2d) 281]; Risdon v. Hotel Savoy Co., 99 Wash. 616 [170 Pac. 146]), there is no evidence in the present case to support an award therefor. Dr. Beckett testified to a loss of business following his eviction but there is nothing to indicate that this decrease was caused by the eviction.

He also urges his right to exemplary damages. However, such damages are recoverable only “where the defendant has been guilty of oppression, fraud, or malice, express or implied” (sec. 3294, Civ. Code), and whether there has been such conduct is always a question for the trial judge or the jury to decide upon the evidence in the particular case. Although the acts of the department store’s employees in connection with the eviction of Dr. Beckett were somewhat extreme, the finding that Dr. Beckett should not recover exemplary damages is conclusive upon this court under the evidence as a whole.

The judgment is therefore modified by adding the sum of $147.83 to the amount of $666 for which damages were awarded and as so modified the judgment is affirmed, the appellant Lawrence G. Beckett to recover costs on appeal.

Carter, J., Gibson, J., Houser, J., Waste, C. J., Curtis, J., and Shenk, J., concurred.