author: SHENK, J.

text:
    [L. A. No. 15646.
    In Bank.
    February 16, 1938.]
    HILLSIDE WATER COMPANY (a Corporation), Respondent, v. CITY OF LOS ANGELES (a Municipal Corporation) et al., Appellants, TOWN OF BISHOP (a Municipal Corporation) et al., Interveners and Respondents.

      Ray L. Chesebro, City Attorney, James M. Stevens and S. B. Robinson, Assistant City Attorneys, Carl A. Davis, Deputy City Attorney, and T. B. Cosgrove for Appellants.
    Thomas C. Boone, Glenn E. Tinder, Preston & Braucht, John W. Preston and Preston & Preston for Respondents.
   SHENK, J.

On May 9, 1931, the plaintiff Hillside Water Company, a corporation, filed a complaint in the Superior Court in and for the County of Inyo, seeking to enjoin the defendants, City of Los Angeles, and its Board of Water and Power Commissioners from “flowing, pumping, or otherwise exporting any of the waters” from any of the defendants’ water wells located on the defendants’ lands overlying the underground basin known as the Bishop-Big Pine Basin in Inyo County, and from diverting and transporting any of the waters from said basin to any place or land not overlying said basin.

The Bishop-Big Pine Basin comprises an area of about 95,000 acres. It is located in the Owens River water shed and is bounded (approximately) on the north by the northerly boundary of Inyo County, on the east by the Inyo Mountains, on the south by Tinnemaha dam, whicn is about seven miles south of the town of Big Pine, and on the west by the Sierra Nevada, a mountain range.

Within this basin is an area called the Bishop cone which is described by metes and bounds in the findings and judgment. It is of irregular shape having generally the Owens River as its northerly and easterly boundary and the easterly line of the Inyo national forest as its westerly boundary. It is approximately five miles wide at a point about eight miles westerly and northerly from the Town of Bishop and its southern terminus is about five miles wide at a point some five miles northerly and westerly of the town of Big Pine. The distance from its northwesterly to its southerly terminus is about twenty miles and it follows generally the direction and flow of Bishop Creek. The wells belonging to the city and complained of herein are located within the Bishop cone. It is also within this area that the lands of the plaintiffs and interveners are situated.

When the action was commenced the Hillside Water Company was the owner of approximately 6,600 acres, comprising a single tract of land within the basin. The complaint alleged the operation of about sixty-five ""ells by the defendants on the latter’s lands within the basin; also the withdrawal by means of said wells of the underground waters of said basin and the diversion thereof to the City of Los Angeles, a point outside the water shed; also that such withdrawal and diversion deprived the plaintiff of waters necessary for the irrigation of its lands and otherwise invaded its property rights.

The Town of Bishop, a municipal corporation, the Bishop Union Grammar School District, a public corporation, the Bishop Union High School District, a public corporation, Hess Lumber Company, a corporation, and fourteen individuals- joined in a complaint in intervention. The relief sought by the interveners was substantially the same as that sought by the plaintiff, Hillside Water Company.

Soon after the filing of the complaint in intervention fifteen other actions were commenced in the same county against the defendants named in the Hillside Water Company case, by persons owning agricultural lands located in the Bishop-Big Pine basin northerly and westerly of the Town of Bishop. The allegations in the fifteen actions and the relief sought therein were, for all general purposes, the same as those set forth in the complaint and the complaint in intervention in the Hillside Water Company case. All of said actions were consolidated for trial. During the course of the trial the City of Los Angeles acquired' title to the lands and rights of the Hillside Water Company, whereupon that company retired from the litigation.

After a rather extended trial the court made findings in favor of the plaintiffs and interveners. It found, among other things not necessary to mention, that ail the lands within the Bishop cone are situated over the same body of underground water; that underneath all of said lands there is water-bearing strata, saturated and filled with water lying at various depths beneath the surface of the ground in formations of loose rock, boulders, sand, gravel, and other materials pervious to water; that along the southern boundary of the cone there is a dyke of material impervious to water; that all the underlying area of the cone has been and is in a state of continuity from its source; that the source of the underground water is the rain and melting snow from the slopes of the adjacent Sierra Nevada and the streams flowing down the slopes of the cone; that there is but little rainfall in the vicinity of the lands of the litigants and that nothing but sagebrush will grow on said lands without irrigation or subirrigation; that said land's are fertile and with irrigation and subirrigation produce valuable crops, vegetables and trees; that for many years prior to the commencement of the action “all parts of plaintiffs’ lands were irrigated and were productive by surface irrigation, the water supply by surface irrigation being added to, and the percolation loss thereof retarded by, said underground water plane, so that the service and utility of surface irrigation was thereby increased and extended; that prior to the commencement of the acts of the defendants complained of, the level of the subterranean water under plaintiffs’ lands was, in its natural and normal state, near the surface of the ground and said lands were thereby sufficiently moistened to produce crops of grass, the moistening of lawns, the raising of vegetables and the growing of trees; that all of the subterranean water within the area described as the Bishop cone in its natural and normal state, condition and quantity”, was and is reasonably necessary for the beneficial use of the lands of the plaintiffs and interveners and the proper utilization of their lands and the operation of the municipal water plant of the Town of Bishop for irrigation, domestic and agricultural purposes; that the defendants’ lands, exceeding 90,000 acres, are adjacent to and a large part thereof has a surface elevation generally lower than the lands of the plaintiffs and interveners; that the general movement of the underground water of the Bishop cone is easterly and southerly from the lands of the plaintiffs and interveners toward and under the lands of the defendants; that the plaintiffs and interveners, and others entitled by the terms of the decree of the United States District Court, known as the Chandler decree, to divert all the waters of Bishop Creek at their respective points of diversion, have applied all of said waters to beneficial use upon their respective lands; that said creek water is cold and retards plant growth; that excessive use of said surface water so necessarily applied has resulted in the growth of water grasses on the lands of plaintiffs and interveners ; that said lands have produced smaller crops than were produced thereon prior to the removal of said subirrigation water by the acts of the defendants.

The court further found that the defendants possess, own and operate the Los Angeles aqueduct, which runs in a general southerly direction through the Bishop cone and then in a general southwesterly direction a distance of over two hundred miles to the City of Los Angeles; that the defendants have installed some 84 wells on the 90,000 acres of land owned by them in the Bishop-Big Pine basin; that 44 of their wells are within the area designated the Bishop cone; that the wells of the defendants in the Big Pine basin outside of the area called the Bishop cone are known as Big Pine group, consisting of 25 wells, and the Laws group consisting of 15 wells; that the operation in 1930 and 1931 of the 40 wells in the combined Big Pine and the Laws groups resulted in the extraction therefrom of 120,309 acre-feet of water; that the extraction of water from the Big Pine and Laws groups did not affect the water table underlying the lands of the plaintiffs and interveners; that during the same year, 1930-1931, the water extracted from wells within the Bishop cone resulted in the annual extraction of 79,688 acre-feet; that all the water so pumped and extracted by the defendants was conveyed and carried “outside the Owens river watershed and away from the lands overlying said subterranean water”; that all of said water so pumped and' extracted was and is conveyed by the defendants by means of ditches and canals and the Owens River to and into the Owens River aqueduct owned by the defendants and by means of said aqueduct carried outside of the Owens River watershed'; that the defendants intend to continue to pump and extract the subterranean water from underneath the lands of the plaintiffs and interveners by means of the wells in Bishop cone and other wells to be developed in that area; that by reason of the pumping and diversion operations of the defendants the level of the subterranean water under the lands of the plaintiffs and interveners “has been lowered a large number of feet”, and to the extent that it has been impossible to “properly” surface irrigate said lands for the growing and sustenance of fruit and shade trees, vegetables and crops, because said lands have become dry and arid due to the lack of subirrigation, and the surface water placed on said lands immediately seeps into the soil and is lost; that the supply of subterranean water underlying the lands in the Bishop cone has been partially exhausted, will become completely exhausted if the defendants continue their pumping operations, and that unless restrained the defendants will continue such operations ; that the defendants have not put the water withdrawn from underneath their lands in the Bishop cone to any consumptive use and have not diverted the same to storage; that there has been no necessity on the part of the defendants for the withdrawal by them of the water from the underground basin in the Bishop cone; that “no part of said water has been put to a beneficial or consumptive or necessary use, and that it is not true that the wells in said cone, or any of the water extracted from the underground waters therein by means of said wells have been dedicated to a public use of the City of Los Angeles or its inhabitants; that compensatory damages will not adequately compensate plaintiffs and interveners for the injury they will sustain by reason of the wrongful acts of the defendants; that if said wrongful acts are allowed to continue the damages suffered thereby will be impossible of proof, and that the plaintiffs and interveners have no adequate remedy at law.

On its findings the court concluded that the plaintiffs (excepting Hillside Water Company), and interveners were entitled to have the subterranean water underlying each of their respective parcels of land and underlying all of the area in the Bishop cone “remain and be in its natural and normal condition unaffected in any manner whatsoever by any of the pumping operations, or by the extractions or taking of any water, except such quantity of water as may be reasonably necessary for beneficial use and used upon the lands belonging to the defendants located within the area” described as the Bishop cone; also that the defendants should be forever enjoined from extracting or diverting away from said area in any manner whatever any of the subterranean waters in said area, or from constructing any additional wells in said area for the purposes of extracting water for use outside of said area. Judgment was entered unconditionally and perpetually enjoining the defendants in accordance with the findings and conclusions of the court. From this judgment the defendants have appealed.

Since the filing of the respondents’ brief, and upon stipulation of the parties affected thereby, this court has ordered the reversal of the judgment as to all intervener-respondents save the two school districts and A. Burton. The respondents’ brief will be considered to be on behalf of the plaintiffs in the fifteen independent actions who will be referred to as the respondents, and on behalf of the remaining respondentinterveners whose cases will be specially treated.

The total acreage of the respondents within the Bishop cone is approximately 640, practically all of which is under irrigation. The City of Los Angeles owns about 90,000 acres in the Bishop-Big Pine basin. All of this acreage is not within the Bishop cone. It owns or controls all the area in the cone excepting about 1300 acres—slightly in excess of two sections. There are within the cone about 100 sections. The city therefore owns or controls about 98 per cent of the area in the cone. Within its area the defendants, during the years 1930 and 1931, extracted by means of their Warm Springs and Bishop groups of wells, a total of 79,688 acre-feet of water, which was sufficient, during that period, to supply domestic use for a population of about 300,000. It was against the operation of those two groups of wells that the trial court issued its perpetual and unconditional injunction.

The only irrigation practiced by the respondents on their lands has been and is by surface irrigation with water flowing by gravity through Bishop Creek or its two forks or through irrigation ditches leading therefrom. Bach respondent enjoys an adjudicated and unrestricted water right to the waters of Bishop Creek and has all the water he desires to use for irrigation from those sources. The extraction of water from the underground basin in 1930 and 1931 by means of the defendants’ wells in the Bishop cone resulted in a lowering of the water table from two and one-half to four feet. It is this lowering of the water table, the consequent greater use of the surface irrigation waters of Bishop Creek, the resultant alleged decreased croppage and the increased growth of water grass, of which the respondents complain.

The complaints were drafted and the cases were tried and decided by the trial court on the theory that the right of each plaintiff as an overlying land owner to have the underground waters remain in their natural condition was and is an absolute and unconditional right under all circumstances regardless of the quantity of the supply or the reasonableness of the use or method of use of the water. The judgment was signed on August, 21, 1934. Without doubt the trial court framed its decree and issued its injunction in accordance with the law as enunciated in such cases as Miller v. Bay Cities Water Co., 157 Cal. 256 [107 Pac. 115, 27 L. R. A. (N. S.) 772], and Herminghaus v. Southern California Edison Co., 200 Cal. 81 [252 Pac. 607], The trial was held about two months after the decision of the trial court in the Lodi case. (City of Lodi v. East Bay Municipal Utility List., 7 Cal. (2d) 316 [60 Pac. (2d) 439].) Both cases were decided in the trial court before the decision of this court in Peabody v. City of Vallejo, 2 Cal. (2d) 351 [40 Pac. (2d) 486], which at some length interpreted and declared the effect of the amendment of section 3 of article XIV of the Constitution in 1928. The Lodi case by injunctive order in effect required the use of an average annual runoff of 815,000 acre-feet of water of the Mokelumne Eiver with its consequent wastage in order to maintain unimpaired the underground water supply of the city of Lodi of 3,600 acre-feet annually.

The present injunctive order requires that the underground water table be maintained in its natural state uninfluenced by the pumping operations of the defendants by means of its Warm Springs and Bishop groups of wells. This in effect prevents the beneficial utilization of water beneath 98 per cent (or about 90,000 acres) of the area in the Bishop cone in order that the water table beneath two per cent of this area be maintained in its natural condition. The Constitution now requires these waters “be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented”.

To prevent what appeared to be an unreasonable method of the use of the underground waters and at the same time recognize and protect the rights of the city in the Lodi case, a physical solution of the problem was declared to be available and was ordered. This seemed to be the appropriate, if not the only, course to pursue, inasmuch as the city of Lodi was a governmental agency against which under the circumstances there appearing the remedy in damages would be improper. The judgment was reversed and the cause remanded with instructions to enter judgment accordingly. Likewise the judgment herein must be made to conform to the new state policy in whatever respect it may be in contravention thereof.

Here we are not relegated exclusively to the alternative of a physical solution. Except as to the school districts such a solution need not be applied for the reason that the remedy of the remaining respondents in damages is adequate.

The law as announced in the case of Miller v. Bay Cities Water Co., supra, to the effect that the right of an overlying land owner to the percolating water beneath his lands is analogous to the riparian right, has not been changed and has been recognized in the subsequent cases declaring the new law. Thereunder these respondents have had and still have the right to the use of the underground waters in the Bishop cone as a supporting underground water supply available to and for the benefit of their farming operations. It is readily seen that the use of this underground supply as an undersupport for irrigation or other surface uses would minimize the requirements of surface irrigation and result in benefit to the surface soil and crop conditions. And it may not be rightly said that such use is not a beneficial use of the underground waters. It is also not difficult to conclude that some detriment has resulted to the respondents’ lands by the defendants’ pumping operations. The extent of that detriment and its value in money may not be easy to determine, but it is not impossible of determination as the respondents urge. It is somewhere between a nominal sum and the total market value of the land. It is far from the latter because of the abundant and perpetual supply of water for surface irrigation from Bishop Creek and its tributaries. On the other hand it may not be said to be nominal because of the proof that vegetation will not grow as abundantly, first, because of the lower temperature of the surface irrigation water, and secondly because of the resultant change in soil conditions. These changes in conditions, caused by the defendants, may affect the market value of the lands and to that extent are substantial. The nature of the soil conditions and the movement of the percolating waters necessarily rendered the question of the extent of the water table recession difficult of ascertainment and proof; but the trial court found that during the operation of the wells in the Bishop cone the extraction of water exceeded the replenishment and this finding has support in the evidence. The respondents concede that their status as holders of only 640 acres is insignificant as compared with that of the defendants who own all of the remaining water rights in the area, but they urge that in view of this unequal position of the parties the defendants should not have cast upon them, as the few survivors of a long controversy in the valley, the burden of expense and anxiety of commencing injunction proceedings, and that the defendants, in the first instance, should have filed condemnation proceedings wherein the rights of all parties could have been ascertained and safeguarded.

Assuming the significance of the respondents’ argument that the City of Los Angeles, in the first instance, should have brought condemnation proceedings or purchased their water rights, nevertheless the opportunity is still available to accomplish that result by the process of reverse condemnation. This solution of the controversy is requested by the defendants in the event it be determined that the respondents’ rights have been violated. Two objections to this course have been urged by the respondents. The first is that the trial court found that all of the water in the Bishop cone was necessary to maintain the underground water table in its natural state and therefore that there was no surplus for appropriation and use outside the water shed. But whether there be a surplus or no surplus is no obstacle to the operation of a condemnation proceeding. The second is that the trial court found that the defendants have not devoted the waters withdrawn from the area in the Bishop cone to any beneficial use, either consumptive or storage, and that no public use had therefore attached. This finding lacks support in the record. The uncontradicted evidence is that the water pumped from this area in 1930 and 1931 was conveyed by the Los Angeles aqueduct to the distributing system of the city and devoted to the general uses of the city and its inhabitants; and that in the dry years of 1930 and 1931 the water from the Bishop cone underground supply afforded a very material portion of the city’s water supply. These facts were established by the undisputed oral evidence and likewise find support in the admissions of the pleadings.

When a public use has attached a prohibitory injunction should be granted only in the event that no other relief is adequate. (Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578 [77 Pac. 1113].) In such cases compensation in lieu of injunction is preferred. (Newport v. Temescal Water Co., 149 Cal. 531, 538 [87 Pac. 372, 6 L. R. A. (N. S.) 1098].) The doctrine that intervention of a public use will foreclose the right to an injunction rests not only on estoppel. The doctrine may be applicable even though the aggrieved party be in ignorance of the violation of his rights. In other words, implied dedication to public use is not essential to the operation of the doctrine. Public policy in favor of a continuance of the public use may also be invoked to prevent a prohibitive injunction. {Peabody v. Vallejo, supra, p.378.) When public use has attached for any recognized reason reverse condemnation proceedings may be invoked and applied. No good reason has been advanced why such a proceeding should not be employed in this case. It would appear to be the only appropriate course to pursue. To that end the judgment must be reversed. (See Collier v. Merced Irr. Dist., 213 Cal. 554 [2 Pac. (2d) 790].)

The intervener Burton is shown to be the owner of three lots in the Clarke addition to the Town of Bishop. He was the only intervener omitted from the order of reversal on the stipulation hereinbefore mentioned. The judgment as to him should likewise be reversed. If his water right has been infringed by the pumping operations of the defendants, compensation therefor can be fixed in the reverse condemnation proceedings made available to the parties by the order of reversal.

A physical solution should be found and applied with reference to the rights of the school districts. The Bishop Union Grammar School has been supplied with water for drinking and garden purposes from an artesian well the pressure of which receded during the pumping operations of the defendants. Obviously it is within the power of the defendants to insure an adequate supply of water to this school and the court should safeguard that right by its judgment without the necessity of a prohibitive injunction, with the consequence above indicated, except in aid of the enforcement of the physical solution applied.

It is conceded that the Bishop Union High School obtained water entirely from the mains of the water system of the Town of Bishop. By reason of the reversal of the judgment in favor of that town, by stipulation, it is assumed that the defendants are in control of the distributing system from which the high school was furnished with water. If so the defendants may, by provision in the judgment, be compelled to continue the supply. If this assumption be incorrect the court, on a reversal of the judgment, will be in position to provide otherwise for an adequate water supply to this school and, by reserving jurisdiction in the premises, insure a continuance thereof.

The judgment is reversed and the cause remanded for proceedings in condemnation in accordance with the views herein expressed. Under the circumstances the respondents should receive their costs on this appeal.

The judgment is reversed.

Curtis, J., Langdon, J., Waste, C. J., Nourse, J., pro tem., and Edmonds, J., concurred.

Rehearing denied.


source: Caselaw Access Project

author: WASTE, C. J.

license: Public Domain

text:
    [Sac. No. 5167.
    In Bank.
    February 16, 1938.]
    ATTILIO VASSERE, Appellant, v. LOUIS P. JOERGER, Respondent.

      W. H. Morrissey for Appellant.
    Carter, Barrett, Finley & Carlton, as Amici Curiae, on Behalf of Respondent.
   WASTE, C. J.

Plaintiff appeals from a judgment of dismissal entered upon the sustaining of a demurrer to an amended complaint without leave to amend.

The action was commenced on February 15, 1935. It is alleged in the complaint that within four years last past the defendant became indebted to plaintiff’s assignor for services rendered in the sum of $1622.13, and in writings acknowledged, signed and agreed to pay said indebtedness. The complaint then alleged that no part of the amount had been paid and prayed for judgment.

The acknowledgments and agreements to pay, which are written on a single sheet of paper, are set out in haec verba in the complaint, as follows:

“Feb. 14, 1931
“This is to certify that I, Louis P. Joerger, owe John Vassere $776.69 for wages due to date with interest included to date and promise to pay same on or before March 1st, 1931. Interest to be charged from this date to March 1st at rate of 7% per annum.
“Louis P. Joerger.” “March 4th, 1932.
“This is to certify that I owe John Vassere $496.44 for additional wages with interest at the rate of 7%.
“Louis P. Joerger.”
“August 23rd, 1932.
“This is to certify that I owe John Vassere $349.00 for additional wages with interest at 7%.
“Louis P. Joerger.”

Defendant demurred on the grounds that the complaint failed to state a cause of action and that the action was barred under the two-year period of limitation prescribed in section 339 of the Code of Civil Procedure. It was sustained, without leave to amend, upon the latter ground. We pass the general demurrer with the observation that it is not well taken.

It is the plaintiff’s theory upon this appeal that the action is based upon the written acknowledgments and promises therein contained (express and implied) and that the action was therefore timely commenced having been brought within four years after the due date therein fixed. (Sec. 337, Code Civ. Proc.) Defendant and respondent, on the other hand, relies on the rule announced in Southern Pac. Co. v. Prosser, 122 Cal. 413 [52 Pac. 836, 55 Pac. 145], and other cases, to the effect that a distinction exists between the acknowledgment of a debt before the statute has run and an acknowledgment after the statute has run, the former merely vitalizing the old debt for another statutory period from the date of the acknowledgment, the action, in such ease, being upon the original obligation, while in the case of an acknowledgment after the statute has run, the action is upon the new promise for which the old debt is a consideration. In the cited case the rule is stated as follows: ‘ When a debtor makes a new promise before an action is barred upon the original contract, he does not make himself liable a second time for the same debt, and the old promise is not merged in the new one; he merely continues his original liability for a longer term. In other words, he merely waives so much of the period of limitations as has run in his favor. But when his legal obligation is at an end by reason of the lapse of the full period of limitations or of a discharge in bankruptcy, a new promise creates a new obligation and is itself the basis of the action. ’ ’

Under this rule, the acknowledgments in the present case if made prior to the running of the two-year period of limitation governing the original obligations, which obligations were not founded in a writing, would have served merely to extend the period an additional two years from the date of each of such acknowledgments or the time for payment therein prescribed and the action not having been commenced within two years thereafter would be barred. (National Cycle Co. v. San Diego Cycle Co., 9 Cal. App. Ill, 113 [98 Pac. 64]; Gilmore v. Green, 77 Ky. (14 Bush.) 772, 775, 776.) However, if the acknowledgments were made after the statute had fully run on the original oral obligations, they would constitute new promises, even though such promises be merely implied therefrom (Maurer v. Bernardo, 118 Cal. App. 290, 294 [5 Pac. (2d) 36]), and being in writing the action would be governed by the four-year period.

While we recognize the rule relied on by the defendant, we are not satisfied that it has been correctly applied to this case by the trial court. Preliminary to pointing out wherein the rule has been improperly applied to the complaint here involved, we pause to state that it is well settled that “a demurrer on the ground of the bar of the statute of limitations does not lie where the complaint merely shows that the action may have been barred. It must affirmatively appear that, upon the facts stated, the right of action is necessarily barred.” (Pike v. Zadig, 171 Cal. 273, 277 [152 Pac. 923]; Curtiss v. Aetna Life Ins. Co., 90 Cal. 245, 250 [27 Pac. 211, 25 Am. St. Rep. 114].) With this principle in mind, we fail to perceive in the complaint any allegation tending to show that the acknowledgments therein set forth and relied on by the plaintiff were made at a time prior to the running of the two-year period on the original oral obligations so as to merely vitalize said original obligations for an additional two-year period. On the contrary, and for all that appears on the face of the complaint, it is reasonably possible to construe the same as relying on acknowledgments made after the running of the statute on the original obligations so as to constitute new written promises, express or implied, as to which the period of limitation would be four years. This being so, it does not “necessarily” appear from the face of the complaint that the action is barred, so as to warrant the sustaining of the demurrer. (Pike v. Zadig, supra.)

In opposition to this reasoning it may not properly be contended that the opening allegation of the complaint to the effect “that within four years last past next preceding the commencement of this action said defendant became indebted”, etc., is indicative of the fact that the original obligations were incurred within four years thus necessarily causing the acknowledgments thereof to have been made prior to the running of the two-year period of limitation on the original obligation, for the reason that it definitely appears that the first acknowledgment is dated “Feb. 14th, 1931” and the action was commenced February 15, 1935, more than four years thereafter. Obviously, if an acknowledgment of a debt was made more than four years prior to the commencement of the action, the debt itself could not have been incurred within four years of such commencement. This necessarily tends to disclose that the above-quoted allegation has reference to the new promises contained in or implied from the acknowledgments and definitely indicates that plaintiff and appellant is suing upon such new promises. In passing, and merely to preclude confusion, it should be stated that the first acknowledgment though bearing date more than four years prior to the commencement of the action contains an express promise to pay the amount therein acknowledged to be due on “March 1st, 1931”, which was less than four years prior to suit and the action thereon was therefore instituted within time.

Nor do we think the statement in the first acknowledgment “for wages due to date” necessarily and exclusively implies that the debt for wages so acknowledged accrued immediately prior to such acknowledgment so as to cause the acknowledgment to have been made prior to the running of the two-year period on the original debt. Such statement is equally consistent with an accruing of said debt at a more distant period. But, be that as it may, the last-quoted expression does not appear in the remaining two acknowledgments of other and additional debts for wages owing to plaintiff’s assignor and the same are not subject thereto. A demurrer based on the statute of limitations may not properly be sustained if any part of the cause of action be not barred. (Etchas v. Orena, 127 Cal. 588, 591 [60 Pac. 45].)

In our treatment of this ease up to this point we have proceeded upon the theory that the complaint- does not on its face disclose that the acknowledgments were made prior to the running of the two-year statute upon the original obligations, so as to merely vitalize said original obligations for an additional two-year period, which would have expired prior to the commencement of this action, but rather that the complaint is equally consistent with the theory that the acknowledgments were made subsequent to the running of the statute so as to constitute new promises in writing as to which the period of limitation would be four years. However, even if we assume for present purposes that the complaint discloses that the acknowledgments were made prior to the running of the statute upon the original obligations, we still would be of the view that the demurrer was improperly sustained. In concluding that an acknowledgment or promise made while the original obligation is legally enforceable, constitutes a “continuing contract” which merely vitalizes the original debt for an additional period, defendant and the trial court failed to perceive that this result follows, under the authorities, only when the acknowledgment or promise is general and unconditional. If, however, an acknowledgment or promise, made while the original obligation is legally enforceable, “be not a general promise to pay the obligation according to its tenor and terms, but is a promise coupled with any condition, and an action is brought after the statute of limitations would have barred the remedy upon the original obligation, the action of plaintiff is then upon the substituted, conditional promise, and not upon the original obligation”. (Rodgers v. Byers, 127 Cal. 528, 530 [60 Pac. 42]; Morehouse v. Morehouse, 140 Cal. 88, 92 [73 Pac. 738]; Maurer v. Bernardo, supra, p. 294.)

Therefore, regardless of whether made prior or subsequent to the running of the statute upon the original obligation, it definitely appears that the acknowledgment and express promise first above quoted, wherein on “Feb. 14th, 1931”, the defendant acknowledged his then indebtedness to plaintiff’s assignor for wages in the sum of $776.69, is not a general and unconditional promise but, on the contrary, is a qualified and conditional promise to pay, with interest, the debt then admittedly due, at a future date, to wit, “March 1st, 1931”. In effect, this constituted an offer to pay on condition of forbearance to sue which, when followed, as here, by an actual forbearance to sue, gave rise to a binding unilateral contract. This new and conditional promise, which thereafter ripened into a binding unilateral agreement, being in writing, is governed by the four-year period of limitation and the present action thereon was commenced within time. As already stated, if any part of the cause of action was not barred, it was improper to sustain a demurrer to the entire complaint based on the statute of limitations (supra).

Moreover, and the complaint is devoid of anything to the contrary, the acknowledgments of March 4 and August 23, 1932, with their express promises for the payment of interest at the rate of 7 per cent from the dates thereof upon the respective additional amounts therein admitted to be due and owing to plaintiff’s assignor may well have been the result of understanding or agreement between the parties. In other words they may well represent settlement or compromise agreements between the parties and, a memorandum thereof being in writing, they are governed by the four-year period.

What we have said sufficiently discloses the error of the trial court in sustaining the demurrer. We are of the opinion that it also effectively disposes of the additional point urged on behalf of the defendant and respondent to the effect that the judgment of dismissal was proper if for no other reason than that the plaintiff and appellant failed to furnish a bill of particulars, as required by court order made pursuant to defendant’s motion therefor. The defendant having in writing acknowledged and promised, either expressly or impliedly, to pay to plaintiff’s assignor with interest the three specific sums here sued for, as the result of an understanding or agreement of settlement or compromise, or otherwise, was not in a position to demand a bill of particulars. Defendant’s written admission and acknowledgment that the several items here sued on were due and owing to plaintiff’s assignor forecloses him from exercising the right of examining them by way of demanding a bill of particulars. (Henning v. Clark, 46 Cal. App. 551, 555 [189 Pac. 714]; Converse v. Scott, 137 Cal. 239 [70 Pac. 13].)

For the foregoing reasons, the judgment is reversed with directions to the trial court to proceed in accordance with the views herein expressed.

Houser, J., Shenk, J., Seawell, J., Curtis, J., Langdon, J., and Edmonds, J., concurred.


text:
    [Sac. No. 5139.
    In Bank.
    February 16, 1938.]
    WILLIAM H. BATES, Jr., Respondent, v. T. R. McTAMMANY, Appellant. WILLIAM H. BATES, Jr., Respondent, v. T. R. McTAMMANY, Appellant.
    [Sac. No. 5140.
    In Bank.
    February 16, 1938.]

      Griffin & Boone for Appellant.
    Cleary & Zeff and Joseph J. Young for Respondent.
   SHENK, J.

The plaintiff and the defendant formed a copartnership for the purpose of conducting radio station KTRB in the city of Modesto. Subsequently the plaintiff commenced two actions against the defendant. In one he sought to establish a trust for the benefit of the partnership in the real property occupied by the radio station, title to which was held in the name of the defendant. In the other he prayed for an accounting, payment of accrued and overdue partnership debts out of accumulated partnership funds, and equal division of the surplus between the partners. In the first action the defendant joined issue by answer and filed a cross-complaint setting up a claim of sole ownership in himself of the property. In the second action he filed an answer and a cross-complaint claiming 67 per cent ownership of the partnership funds and assets and alleging lack of cooperation on the part of the plaintiff. He asked for an accounting and a division on the basis of his alleged ownership. By a supplemental cross-complaint he sought a termination of the partnership on the ground of the plaintiff’s lack of cooperation theretofore alleged. By an amended supplemental cross-complaint he prayed for a dissolution on the theory that it was a partnership at will, and based on an election by him to terminate the partnership and wind up its affairs.

The trial court found that the parties were equal partners; that the real and the personal property were owned by the parties equally, and that title to the real property was held by the defendant as trustee for the partnership. It adjudged the plaintiff’s right to a conveyance of the real property to the partnership. It found against the defendant on the issues presented by the cross-complaints, denied the defendant’s prayer for dissolution, ordered payment of the partnership debts, and a division of the remaining funds, with the exception of approximately $2,000, equally between the partners.

The defendant appealed from the judgment in each action. The appeals are consolidated in one transcript and are now considered together.

The defendant does not appear to question the correctness of the judgment in the first action, nor the conclusion of the court that the parties are equal partners. The only ground of appeal is that the court erred in denying the defendant the right to a dissolution of the partnership.

The partnership was formed on October 1, 1933. A year later the parties reached an accord concerning the status of the partnership assets and liabilities, which disclosed that the plaintiff had contributed to the partnership about $300 more than the defendant. On October 1, 1936, undisbursed and undivided partnership funds to the extent of $16,572.46 had accumulated on deposit in banks. Partnership obligations, in addition to the excess contribution of the plaintiff, amounted to nearly $4,000. The partnership was liable for 7 per cent interest on that sum, but its funds on deposit were not drawing interest. The trial court found that the defendant, whose signature was required on all checks, had refused to sign or countersign checks for the payment of the partnership debts, although there was ample money on hand for the purpose, and refused to sign any checks dividing the profits between the parties. The court also found that the plaintiff had not refused to render an account or to cooperate in handling the partnership affairs, but that the defendant had so conducted himself toward the partnership that it became extremely difficult to carry on the business of the partnership in a practical, economical or businesslike manner; that the defendant denied to the plaintiff the use of the key to the partnership mail box; that he kept the partnership books under lock and key and refused access thereto to the plaintiff; and that his refusal to pay the partnership debts had caused considerable loss. On the issues raised by the application of the defendant for dissolution, the court expressly found that the defendant had not come into equity with “clean hands”; that to order a dissolution at the time would destroy a large part of the value of the business due to the fact that a federal license to operate the radio station was under the control of the federal communications commission and could not be sold at a dissolution sale. The court further found that the “partnership was formed for the purpose of building, constructing, operating and maintaining radio station KTRB so long as the license therefor could be obtained from the federal government”, and that the station was operating on a license that must be renewed every six months.

The evidence, including that referred to by the defendant, supports the foregoing findings. However, the defendant contends that the partnership was one at will and that, without any further consideration, he was entitled to a dissolution pursuant to sections 2425 (1) (b) and 2426 (2) (b) of the Civil Code. The first of those sections states that a dissolution is caused “by the express will of any partner when no definite time or particular undertaking is specified”. The other permits a dissolution by decree of court under prescribed circumstances if the partnership be one at will. The finding that the partnership was formed for a definite undertaking, namely, for the construction, operation and maintenance of the radio broadcasting station KTRB, and so long as the federal license therefor could be procured, is fully supported by the record, and negatives any conclusion which otherwise might be drawn that the partnership was one at will. A finding now as matter of law that the partnership was of that nature would not be justified.

Equitable principles apply in determining the rights of the parties to an action for an accounting between partners, for dissolution of the partnership, and settlement of its affairs. (Freeman v. Donohue, 65 Cal. App. 65, 79 [223 Pac. 431].) No serious contention may be made that the defendant, himself at fault, may prevail on his application for a dissolution if it would cause loss to the partnership. Equity may refuse dissolution and act to prevent the loss to the partnership if it is expedient to do so, rather than to relegate the plaintiff to his action for damages for breach of the contract. (Gerard v. Gateau, 84 Ill. 121 [25 Am. Rep. 438].)

In Karrick v. Hannaman, 168 U. S. 328 [18 Sup. Ct. 135, 42 L. Ed. 484], it was said: “A court of equity, doubtless, will not assist the partner breaking his contract to procure a dissolution of the partnership, because, upon familiar principles, a partner who has not fully and fairly performed the partnership agreement on his part has no standing in a court of equity to enforce any rights under the agreement,” citing Rutland Marble Co. v. Ripley, 10 Wall. 339, 358 [19 L. Ed. 955]. (See, also, Josephthal v. Gold, 104 Misc. 137 [171 N. Y. Supp. 1041, 1042].)

It is true that the foregoing cases necessarily recognize that there can be no such thing as an indissoluble partnership, and that circumstances may arise which would make it inexpedient for a court of equity to prevent the dissolution. Nevertheless the grounds for premature dissolution must be serious, and will not be recognized as justifiable when the suit is by the partner found to be at fault and when such dissolution will cause losses to the partnership or destruction of the value of partnership assets or property.

The defendant has not shown error or abuse of discretion on the part of the trial court.

The judgment is affirmed.

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


author: LANGDON, J.

text:
    [L. A. No. 15926.
    In Bank.
    February 17, 1938.]
    In the Matter of the Estate of EDWARD S. FLATAU, Deceased. GLADYS FLATAU LEVY, Appellant, v. JACOB L. FLATAU et al., Respondents.

      Gibson, Dunn & Crutcher, Henry F. Prince and Robert F. Schwarz for Appellant.
    Alfred J. Smallberg for Eespondents.
   LANGDON, J.

This is an appeal from an order of the trial court in a will contest directing a verdict for respondent, proponent of the will. The contest was filed by an adopted daughter of decedent, and was based upon allegations of incompetency and undue influence.

In 1897, while living in Ohio, decedent Edward S. Flatau and his wife, respondent Celia Flatau, adopted contestant Gladys Flatau, who was then three years old. In 1914 she married Lionel Levy in Toledo, Ohio. Having accumulated sufficient funds, decedent retired from business in about 1925, when he came to California with his wife. He continued thereafter to look after his investments and engaged in other normal activities. In 1933 he took a trip to Ohio, and in Toledo engaged his attorneys to draw a will for him, in which his adopted daughter was not mentioned. In September, 1935, decedent consulted with respondent Jacob Flatau, his brother, with reference to the drawing of a new will, and the latter took decedent’s old will to his attorney, who prepared several drafts during the next few months. On December 22, 1935, decedent was taken to the hospital, suffering from a leg ailment involving the possible necessity of amputation. The brother was called to the hospital, and saw decedent that evening and the following day. On the afternoon of December 24th, the final draft of the will was read to decedent in the presence of two doctors, and after approval, was subscribed by them and by an attending nurse. Shortly thereafter decedent went to the operating room. He was unable to recover from the operation and died five days later.

The will named Jacob Flatau, the brother, executor to serve with bond, and gave him an undivided one-sixth interest in fee of one-half of decedent’s real property in Ohio, subject to a prior life estate. The rest of the estate went to the widow and others, excluding contestant, his adopted daughter, who was disinherited by an express provision leaving her one dollar. The only major change which the 1935 will made in the disposition of property under the 1933 instrument was in the provision for the brother, and in neither was any estate given to contestant.

Upon the trial of the contest, the court directed a verdict for the proponents and admitted the will to probate, granting letters testamentary to Jacob Flatau. In our opinion this order was proper, for there is no substantial evidence to support the alleged grounds of contest.

The contestant called the subscribing witnesses, Doctors Chaffin and Gallant, and Ellen Moede, the nurse. Doctor Gallant had been particularly careful to assure himself that decedent knew what he was doing, and interrupted the reading of the will after every paragraph to ask whether he understood. Decedent replied each time that he did, and called for the next clause. Doctor Chaffin observed this procedure, and testified to the fact that the patient carried on this conversation with Doctor Gallant. Both doctors and the attending nurse testified that the actions of decedent were rational, and each doctor testified that he was of sound mind. There was abundant evidence from other witnesses, including his secretary and the manager of his bank, to the effect that he was a good business man, and mentally sound and alert.

The evidence relied upon to create a sufficient conflict with this testimony is that decedent suffered considerable pain in his leg; that he had been given some four doses of one grain of codein, the first on December 23 at 11:20 P. M., and the others at 3:15 A. M., 7 A. M., and 2:30 P. M.; that the brother had the will prepared by his own attorney who did not know decedent; and that the brother benefited by the will. It is also asserted that the will was unnatural in disinheriting an adopted daughter with whom decedent had always had relations of affection.

The above evidence is entirely unsubstantial. The two attending doctors and the nurse,, wholly disinterested witnesses, testified emphatically that decedent was awake and in possession of his normal faculties; and the fact that decedent expressly approved each paragraph as it was read to him shows that the drugs had not impaired his capacity to hear and understand. The attempted showing of undue influence fails when it is realized that the will was drafted over a period of several months while decedent was well, and that there was no time during his stay in the hospital when his brother had any opportunity to influence him. Dr. Gallant testified that he heard no words of compulsion, and the brother was never alone in the room with decedent at any time. The disinheritance of contestant was obviously not a new thought of decedent, since the 1933 will likewise left no part of the estate to her. The suggestion that this was unnatural in view of friendly relations is answered by the undisputed fact, admitted by contestant, that shortly after her marriage they became estranged. Contestant testified that their relations were always cordial, but a letter by her to decedent, which was the only communication she could recall in the entire eighteen-year period, upbraids him and his wife for alleged unfair treatment of contestant and her husband, charges him with having given her an unhappy childhood, and indicates awareness of her probable disinheritance.

It is hardly necessary to cite authorities on the well-settled principles governing the admission of wills to probate, but it should be remembered that there is a strong presumption of competency (Estate of Wright, 7 Cal. (2d) 348 [60 Pac. (2d) 434]; Estate of Perkins, 195 Cal. 699 [235 Pac. 45]), and that far stronger showings than this have been held' insufficient to establish incompetency. (See Estate of Finkler, 3 Cal. (2d) 584 [46 Pac. (2d) 149]; Estate of Sexton, 199 Cal. 759 [251 Pac. 778]; Estate of Smith, 200 Cal. 152 [252 Pac. 325]; Estate of Peterkin, 23 Cal. App. (2d) 597 [73 Pac. (2d) 897].)

Contestant asserts that error was committed in refusing to permit one Iona Hergert, a registered nurse attending decedent, to testify as to his testamentary capacity. The evidence was properly excluded, for no attempt was made to qualify her as an expert, and she was not an “intimate” acquaintance qualified to give a nonexpert opinion on sanity. (Atkins Corp. v. Tourny, 6 Cal. (2d) 206 [57 Pac. (2d) 480].)

The judgment is affirmed.

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

Houser, J., concurred in the judgments.

Rehearing denied.


text:
    [Crim. No. 4136.
    In Bank.
    February 17, 1938.]
    THE PEOPLE, Respondent, v. BILL H. THORNE, Appellant.
    Horace Appel and O. O. Askren for Appellant.
    U. S. Webb, Attorney-General, James S. Howie and Eugene M. Elson, Deputies Attorney-General, Buron Fitts, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Respondent.

      Earl Warren, District Attorney of Alameda County, Ralph E. Hoyt, Chief Assistant District Attorney, and Nathan Harry Miller, Deputy Attorney, as Amici Curiae, on Behalf of Respondent.
   WASTE, C. J.

In an information filed by the district attorney of Los Angeles County, the defendant was charged with grand theft. He was tried by jury and convicted, whereupon he prosecuted this appeal from the judgment and order denying his motion for a new trial.

It appears that on or about November 13, 1936, defendant represented to the prosecuting witness that he had a device whereby he could enlarge the denomination of $1 bills. Three days later the parties repaired to an apartment house where the “victim” delivered approximately $2,600 in bills of varying denominations to the defendant. The bills of larger denomination were to be used solely for the purpose of getting imprints thereof which were to be transposed or transferred on to the $1 bills. The larger bills were to be returned to the prosecuting witness. Subsequent developments proved that defendant had understated his ability. Rather than merely change the denominations of the smaller bills, as promised, he caused all the bills to completely disappear. Briefly, the evidence discloses that the change in denomination of the smaller bills was to be accomplished by immersing the bills of larger denomination in a solution and then by means of a press and other paraphernalia to transpose or transfer on to blank paper the imprints of said bills which, in turn, were then to be similarly transposed or transferred on to the smaller bills which, in the meantime, also had been immersed in a solution and the color and printing removed therefrom. One of the solutions essential to the transposition was kept in the bathtub of the apartment. Defendant made frequent, but unaccompanied, trips to the bathroom for the ostensible purpose of there immersing the bills that had been delivered to him. On one of these trips he emerged from the bathroom with something wrapped in a towel and put it in a small black bag that theretofore had served to transport the essential equipment. After all the bills had been thus treated, defendant brought from the bathroom what appeared to be the complete stack of bills delivered to him by the prosecuting witness, with a $1 bill on the top and bottom. This stack was placed in the press. Defendant then stated that it was necessary for him to go to his distantly removed hotel for additional equipment. The prosecuting witness drove defendant to the hotel. While he waited in his automobile, the defendant, with the black bag, entered the hotel presumably to get the additional equipment. Defendant failed to return. Upon his return to the scene of the operations, the prosecuting witness found that the package which defendant had placed in the press consisted of a large stack of blank paper placed between two $1 bills. The jury in convicting defendant of grand theft as charged undoubtedly concluded that defendant, under cover of a towel, had placed in the bag the bills that had been delivered to him and, at the first opportunity, departed with them to places unknown.

There is also in the record the testimony of the secretary of the prosecuting witness, who related that the defendant came to their office during the morning and afternoon of November 16, 1936. It was later that day that the money was delivered to the defendant.

The arresting officers testified that at the time of his arrest the defendant had in his possession approximately $1400 in currency, some of which appeared to have been immersed in a liquid, and also a black bag and paraphernalia similar to that described by the prosecuting witness.

Defendant’s sole contention on appeal is that the trial court erred to his prejudice when, over objection, evidence was admitted to the effect that approximately two weeks prior to the offense of which he here stands convicted, the defendant approached the witness Merritt and informed him he had a way of transferring $10 bills on to $1 bills. The witness failed to evince interest in the plan. The witness also testified that defendant at the time had a black bag and certain equipment similar to that identified by the prosecuting witness herein.

We find no error in the admission of this evidence. Though he did not take the stand on his own behalf, the defendant relied on an alibi defense and sought to prove by other witnesses that he was elsewhere at the time of the commission of the offense of which he stands convicted. The evidence that shortly prior to the commission of such offense, the defendant had represented to a third person that he could raise the denomination of $1 bills tends to establish a common scheme or plan on his part to defraud the public by having gullible persons deliver to him possession of their money for such purpose whereupon he would depart with it. As stated, the evidence complained of tends to establish a common scheme or plan and the testimony of the witness Merritt was therefore admissible as tending to show that the theft of which defendant here stands convicted was committed by him as a part of his scheme or plan, and this whether it be regarded as theft by false pretenses or theft by trick and device. {People v. Whiteside, 58 Cal. App. 33, 38-41 [208 Pac. 132]; People v. Helmlinger, 69 Cal. App. 139, 141, 142 [230 Pac. 675]; People v. Munson, 115 Cal. App. 694, 699 [2 Pac. (2d) 227]; People v. Edwards, 133 Cal. App. 335, 339-341 [24 Pac. (2d) 183].) In passing, it may be stated that one of the arresting officers observed defendant prior to his arrest in conversation with the witness Merritt.

In the case first above cited, the witness Stivers testified that approximately two months after the commission of the offense for which the defendant therein was on trial, the defendant had made representations to him similar to those made to the prosecuting witness therein. In approving the admission of this evidence it was declared on appeal (p. 39) that “If viewed with respect to its relevancy as tending to show that the facts constituting the charge contained in the information were a part of a scheme to defraud the public as distinguished from a single individual, it was not necessary in order that Stivers’ testimony be admissible that an attempt be shown to have been made to sell him any stock or that the evidence, if accepted as true, should tend to show the commission of an offense like in character to the one charged. ...”

In People v. Sindici, 54 Cal. App. 193, 196 [201 Pac. 975], it is stated that “ ‘Where the very doing of the act charged is in issue and is to be evidenced, one of the essential facts admissible is the person’s plan or design to do the act. This pi an or design itself may be evidenced by his conduct, and such conduct may consist of other similar acts [including representations] so connected as to indicate a common purpose including in its scope the act charged. . . . ’ ”

We are also of the opinion that much of the evidence here complained of was admissible as tending to show that defendant had the means at hand to commit the crime of which he stands convicted. {People v. Bonner, 5 Cal. App. (2d) 623, 627 [43 Pac. (2d) 343]; People v. Radovich, 122 Cal. App. 176, 180 [9 Pac. (2d) 542].)

The judgment and order are, and each is, affirmed.

Houser, J., Shenk, J., Edmonds, J., Langdon, J., and Curtis, J., concurred.


author: HOUSER, J.

text:
    [Sac. No. 5156.
    In Bank.
    February 17, 1938.]
    In the Matter of the Estate of ALEXANDER GOLDBERG, Deceased. M. H. BLUE et al., Appellants, v. GUSTAVE GOLDBERG, as Trustee, etc., et al., Respondents.

      Elliott, Atkinson & Sitton and R Platnauer for Appellants.
    H. Nelson French, Ralph H. Cowing and Chauncey H. Dunn for Respondents.
   HOUSER, J.

This appeal relates to an asserted power of a probate court by which an order, “nunc pro tunc” was made, which affected an order of final distribution in the matter of the Estate of Alexander Goldberg, Deceased, and which former order was made thirty-five years after the latter was entered.

The pertinent facts are that a will in said estate that was in the course of probate included a provision, of which the following is a copy of its questioned conditions: "I give devise and bequeath to my daughter Mrs. Emma Blue the following described tract of land situated in Sacramento County, State of California, ... to hold the same in trust for my son Fritz Goldberg. . . . Should my son Fritz die leaving issue, then and in that event the property shall vest in such issue. Should he die leaving a wife but no child then the same shall vest in such wife. Should my son Fritz die without either wife or child then said property shall vest absolutely in my children Gustave-Fritz-Amelia and Mrs. Emma Blue.”

To the petition for final distribution of said estate a copy of the will was attached and the prayer of the petition was that the residue of the estate "be distributed to those entitled thereto”. The petition for distribution did not indicate the manner in which the estate should be distributed. The minute order of the court that followed a hearing of such petition was as follows: “Decree of distribution granted in accordance with terms of the will, and the Court directs that the proper decree be prepared and filed herein, and when filed, the same to be entered in the records of this Court on the date of filing.” •

Thereupon, and immediately thereafter, a decree of distribution of the estate was signed by the judge of the probate court. Among other provisions therein contained was the following: “To Mrs. Emma Blue, daughter of deceased, the legal title to the aforesaid Fritz Goldberg Tract, to be held in trust for said Fritz Goldberg for the term of his natural life . . . ; provided, that in the event that said Fritz Goldberg shall die leaving neither surviving wife or child, then and in that event the title to said tract of land shall vest in Gustave Goldberg, Amelia Goldberg and Mrs. Emma Blue, children of deceased, share and share alike in fee simple.”

With the exception of Gustave, in the course of thirty-five years next ensuing, all the children of the testator had died. On the death of Fritz “without either wife or child” him surviving, Gustave, who was the executor of the will of Alexander Goldberg, deceased, presented his petition to the probate court “for instructions”, but therein prayed “that he be authorized and instructed as trustee to deliver all of the assets of said trust to himself free and clear of the said trust, and that upon so doing he be discharged of all liability as trustee”.

On the hearing of the said petition, evidence was taken which included the will itself, the petition for distribution of the estate, the minute order, and the order of distribution, to each of which reference hereinbefore has been had. Thereupon, by the “nunc pro tunc” order here in question, the original decree of distribution was amended.

As far as here is important, it may be noted that the effect of the “nunc pro tunc” order was to make the decree of distribution conform to the exact provision of the will; that is to say: The will having contained a provision that “should my son Fritz die without either wife or child then said property shall vest absolutely in my children Gustave-FritzAmelia and Mrs. Emma Blue”; and the original decree of distribution having provided “that in the event that said Fritz Goldberg shall die leaving neither surviving wife or child, then, and in that event the title to said tract of land shall vest in Gustave Goldberg, Amelia Goldberg, and Mrs. Emma Blue (omitting Fritz), children of deceased, share and share alike, in fee simple”;—by the terms of the “nunc pro tunc” order it was decreed:

“That the petition for distribution in the matter of the estate of Alexander Goldberg, requested that distribution be made in accordance with the terms of the will of said Alexander Goldberg. That through a clerical error, the decree of distribution in the matter of the estate of said Alexander Goldberg in two places omitted the name of Fritz Goldberg * where the name of Fritz Goldberg appeared in the will; that said error should be corrected at this time; . . . ”

It first is contended by appellants that the lower court erred in admitting the will in evidence and thereupon in considering its contents for the purpose of “interpreting the decree of distribution” which theretofore had been made by the court. In that connection appellants direct attention to the language contained in the minute order that was made in the lower court on the hearing of the petition for the original decree to the effect that it is there recited that the decree was “granted in accordance with the terms of the will”, and that the court directed that “a proper decree be prepared”; also to the language contained in the original decree wherein it appears that it purports first to direct distribution of the estate “among the persons entitled thereto”, and follows by the order of distribution, by which, instead of following the direction of the testator, a part of the estate was distributed to the children Gustave, Amelia and Emma,—omitting Fritz. On such a premise, specifically it is urged that since probate orders need not recite the existence of facts (see. 1704, Code Civ. Proc.); that the presumption is that “official duty has been regularly performed’.’; and “that the ordinary course of business has been followed” (subds. 15, 20 of sec. 1963, Code Civ. Proc.);—it should result that the meaning which should attach not only to the language of the minute order, but also to that of the decree, is that the conclusion as was expressed in the original decree (even if incorrect) was that at which the court “judicially” arrived; and consequently that after the lapse of time within which an appeal might have been lawfully taken, the decree became final and that thereafter the will itself could not be property used for the purpose of vacating or impeaching such decree.

In general, and in the absence of some existing and affecting condition such as extrinsic fraud, or anything akin thereto, the rule would appear to be well established that even though from a standpoint of following the specific provisions of the will, a decree of distribution of the estate is inaccurate and incorrect, nevertheless after the decree has become final, for all time thereafter, it remains the unalterable measure of the rights of all persons who may be interested in the estate. (Matter of Trescony, 119 Cal. 568 [51 Pac. 951]; Lankton v. Superior Court, 5 Cal. (2d) 694, 696 [55 Pac. (2d) 1170]; Goad v. Montgomery, 119 Cal. 552 [51 Pac. 681, 63 Am. St. Rep. 145]; Moor v. Vawter, 84 Cal. App. 678 [258 Pac. 622] and authorities therein respectively cited.) However, should the language of such a decree appear to be “uncertain, vague or ambiguous” it is subject to judicial explanation or interpretation, and in such circumstances, the will itself may be used to establish the true meaning and intent of the decree. (Fraser v. Carmen-Ryles, 8 Cal. (2d) 143 [64 Pac. (2d) 397]; In re Ewer, 177 Cal. 660 [171 Pac. 683]; Horton v. Winbigler, 175 Cal. 149 [165 Pac. 423].) But herein, with respect to the provision of the will that is the subject of inquiry, its language is plain and unambiguous; it requires no interpretation; nor has an interpretation of the will been suggested. The only purpose of the petition was to correct an asserted clerical error that appeared in the decree.

Such being the situation, both in regard to the facts and the general rule of law that affects the question of the eonclnsiveness of a decree of distribution of an estate which, ordinarily speaking, has become final, the additional specific question here presented relates to whether, the facts herein considered, the lower court had authority or power to make an order, “nunc pro tunc’’, by which the decree theretofore entered by the lower court could be modified or corrected as to a clerical error which appeared therein so as to make the decree conform to the express terms of the will.

In that regard, it also appears to be conceded by the respective parties to this appeal that notwithstanding the general rule that even though judicial error therein be manifest, after a judgment or decree has become final, its provisions no longer property may be subjected to change or modification, nevertheless when on the face of the record it appears that a clerical error has been committed and carried into the judgment or decree, the court has the authority and the power to correct such error. The primary inquiry, then, that is presented for determination is, whether the asserted error in the decree was the result of a clerical error. In that connection, it first becomes advisable to determine whether any error was made. To that end, a brief summary of the facts may be helpful at this point.

By the terms of the will, the testator directed that as to certain of his property it should be divided among his four children,—Fritz included; the petition for distribution of the estate was that it be “ distributed to those entitled thereto”. In that regard, the court’s minute order was “Decree of distribution granted in accordance with the terms of the will and the court directs that the proper decree be prepared and filed herein. ...” Notwithstanding that situation, the decree that was signed by the judge of the court omitted the name of Fritz as a distributee of that property.

Other than the language of the decree itself, no evidence appears to the effect that the intention of the court was to make its order in opposition to the “terms of the will”. As a presumption of fact and to the contrary of such an assumption, in accordance with the respective decisions in Estate of Newman, 68 Cal. App. 420 [229 Pac. 898], Estate of Wilson, 184 Cal. 63, 68 [193 Pac. 581], Weedon v. Power, 202 Ky. 542 [260 S. W. 385], Ball v. Hophins, 254 Mass. 347 [150 N. E. 434], Payne v. Brown, 164 Ga. 171 [137 S. E. 921], and 13 A. L. R. 615, 620, it appears as a matter of law that the estate of Fritz was empowered to take as a remainderman;—from which it should follow as a natural inference that with knowledge of the law in the premises, the intention of the probate court was to perform its legal duty and direct the distribution of the estate in accordance with “the terms of the will”. That an error was committed is obvious. Moreover, by its findings of fact made by the court with relation to the application for the order “nunc pro tunc”, in substance the court declared “That through a clerical error, the decree of distribution in the matter of the estate of said Alexander Goldberg in two places omitted the name of Fritz Goldberg where the name of Fritz Goldberg appeared in the will; that said error should be corrected at this time; . . . ”

And particularly with reference to the authority of the court to determine the character of the error, in the case of Harman v. Cabaniss, 207 Cal. 60 [276 Pae. 569], it was declared that, “It (the court) has full power to determine whether the alleged error was clerical or judicial in character and,.if clerical, to set aside the interlocutory decree, correct the error and enter judgment on the findings as corrected and conclusions of law to be drawn therefrom.”

Ordinarily, although originally and in its literal significance, a clerical error is one that has been made by a clerk or some subordinate agent, latterly the meaning has been broadened and extended so that it now may include an error that may have been made by the judge or by the court.

In the case of Wilder v. Bush, 201 Ala. 21 [75 So. 143, 146], it was said that “ Clerical errors’ in the journals of the court are not only those made by the clerk, but also those mistakes apparent on the record, made by counsel or even by the court in the progress of the trial. ’ ’

And in Bessemer I. D. Co. v. West Pueblo D. & R. Co., 65 Colo. 258 [176 Pac. 302], it was ruled that “A ‘clerical error ’ in the record of a judgment, as regards correction, includes one made by the court which cannot reasonably be attributed to exercise of judicial consideration or discretion. ’ ’

To the same effect see Enderlin F. S. Co. v. Witliff, 56 N. D. 380 [217 N. W. 537], and Wilson v. City of Fergus Falls, 181 Minn. 329 [232 N. W. 322].

In the ease of Bemmerly v. Woodward, 124 Cal. 568 [57 Pac. 561], it was held (syllabus): “Where there is an error in the caption of the complaint and of the judgment in describing the plaintiffs both as heirs and administrators, but the body of the complaint shows that plaintiffs sue in their representative capacity, and that the estate is not distributed, which facts are admitted by the answer, an error in rendering judgment for the plaintiffs individually, instead of in their representative capacity, is a mere clerical error, apparent upon the face of the record, which might be corrected at any time. . . . The signature of the judge to the judgment does not establish that the error in the judgment is not a clerical error.” And in Kowalsky v. Nicholson, 23 Cal. App. 160 [137 Pac. 607], the ruling was to the same effect.

In 14 California Jurisprudence, pages 995, 996, the rule is thus stated: “But the power to amend is not wholly confined to the correction of an erroneous record; it extends also to cases where some provision of or omission from an order or judgment as made or rendered was due to the inadvertence or mistake of the court and may therefore properly be treated as a clerical misprision rather than a judicial error. . . . There are many cases in which it so clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts as established by the record, that the court acts upon the presumption that the error is a clerical misprision rather than a judicial blunder, and sets the judgment, or rather the judgment entry, right by an amendment nunc pro tunc:”—following which, the author cites several California authorities wherein the rule as announced is fully supported. (See, also, Christie v. Christie, 99 Cal. App. 53 [277 Pac. 872], Dahlberg v. Dahlberg, 92 Cal. App. 639 [268 Pac. 695], and the text on p. 1001 of vol. 14, Cal. Jur.)

In the instant ease, it therefore would appear to be fairly established not only that the error of which complaint has been made was clerical in its nature, but also that the court was well within its authority in ordering its correction. •

Notwithstanding the general authority of the court to make such correction, in reliance upon the provisions of section 473, Code of Civil Procedure, and the cases of Scamman v. Bonslett, 118 Cal. 93 [50 Pac. 272, 62 Am. St. Rep. 226], and Goatman v. Fuller, 191 Cal. 245 [216 Pac. 35], appellant contends that the court had lost and was without jurisdiction to make the order, for the reason that a period of thirty-five years had elapsed after the decree of distribution was ordered before the petition for the issuance of a “nunc pro tunc” order with reference thereto was presented to the court.

Although the pertinent provisions of section 473, Code of Civil Procedure, are that “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, ...” nevertheless appellant asserts that in accord with other applicable portions of the statute, the petitioner was required to present to the court his application for relief within one year (six months) after the judgment or decree had been entered.

In that connection, it may be noted that the foregoing quoted portion of section 473, Code of Civil Procedure, constitutes a part of an addition that was made to the original statute by legislative enactment which appears in Statutes of 1933, page 1851.' Prior thereto, and after the effective date of Statutes of 1919, page 730, the substance of such added matter was contained in section 900a, Code of Civil Procedure, which is a part of part II, title XI, of the Code of Civil Procedure that relates to proceedings in justices ’ courts. But especially with reference to clerical errors either in the entry of the judgment or decree, or with reference to inadvertence of the court, notwithstanding the absence of direct statutory provision by which courts in general were authorized to timely correct both clerical and judicial errors that appeared in their own judgments, in accord with common-law precedent, the courts universally have recognized the existence of an inherent right or power to do so. (14 Cal. Jur. 991 et seq.)

The authorities to which appellant has referred have no application to a situation such as is here disclosed. They relate to judicial errors only. But as to clerical errors, when the error is apparent from the face of the record, no time limit exists as far as the right to make the correction is concerned. (Halpern v. Superior Court, 190 Cal. 384 [212 Pac. 916]; Scamman v. Bonslett, 118 Cal. 93 [62 Am. St. Rep. 226, 50 Pac. 272]; Dickey v. Gibson, 113 Cal. 26 [54 Am. St. Rep. 321, 45 Pac. 15]; Brush v. Pacific Elec. Ry. Co., 58 Cal. App. 501 [208 Pac. 997]; People v. O'Brien, 4 Cal. App. 723 [89 Pac. 438].)

As hereinbefore has been indicated, this court is of the opinion that the asserted error in the order of distribution of the estate was not only clerical in its nature and apparent from an inspection of the record, but was one which, notwithstanding the lapse of so many years, was correctible by the court at any time.

It becomes unnecessary to consider other points that have been suggested by the respective parties to the appeal.

The order is affirmed.

Shenk, J., Curtis, J., Langdon, J., Waste, C. J., and Edmonds, J., concurred.


text:
    [Sac. No. 5187.
    In Bank.
    February 24, 1938.]
    COMMERCIAL CREDIT COMPANY (a Corporation), Appellant, v. BARNEY MOTOR COMPANY et al., Defendants; AMERICAN TRUST COMPANY (a Corporation), Respondent.

      Robert G. Partridge, Ralph E. Bancroft, Marcel E. Cerf, and Robinson & Leland for Appellant.
    John L. Rush, Gene G. Curry, G. J. Irwin and Frank S. Barrett, Amici Curiae, on Behalf of Appellant.
    D. Oliver Germino, Brobeek, Phleger & Harrison, Moses Lasky and Gerald Beatty Wallace for Respondent.
    Louis Ferrari, as Amicus Curiae, on Behalf of Respondent.
   SHENK, J.

The plaintiff sued Bernard Negra, doing business under the name of Barney Motor Company, and one Oscar Tonolla for possession of a Plymouth sedan automobile or its value, and for damages for the alleged wrongful detention thereof. American Trust Company filed a third party claim. The court made its findings of fact from which it concluded that title resided in the third party claimant, and rendered judgment accordingly. The plaintiff appealed.

On April 29, 1935, the plaintiff obtained title to the automobile from James W. McAllister Company, Inc., Chrysler distributor. Negra was a retail dealer of Chrysler and Plymouth automobiles at Los Banos. The Plymouth automobile in question was delivered to Negra under a trust receipt executed by him to the plaintiff, pursuant to which the latter retained title to the car. Negra agreed to hold the automobile in trust for the plaintiff and not to lend, mortgage, pledge, encumber, operate, demonstrate or use it. He was, however, authorized upon consent of the plaintiff to sell the automobile for cash and deliver the proceeds to the plaintiff.

Oscar Tonolla was a brother-in-law of Negra and worked for him as a salesman. On May 7, 1935, Negra and Tonolla appeared at the office of the American Trust Company in Los Banos and applied for a loan on the sale of the car from Negra to Tonolla. A conditional sale contract was executed by Negra as seller and Tonolla as buyer, and was assigned by Negra to the bank. The bank advanced to Negra the purchase price of the car, and possession of the car was delivered to Tonolla. Negra, however, did not deliver the proceeds to the plaintiff. Registration of the automobile was effected with the division of motor vehicles showing Tonolla as the registered owner and the bank as legal owner thereof.

The bank’s representative made no inquiries of Negra as to whether the automobile sold to Tonolla was “floored”, that is, financed under a trust receipt or similar title retention document. There was testimony that the bank’s officer was aware of the custom of “flooring” cars for retail dealers, but that he had no actual knowledge that this particular car was financed and in fact owned by the plaintiff. It was also in evidence that Tonolla had no knowledge that Negra had taken the Plymouth automobile under a trust receipt or that Negra received any financial assistance with respect to the automobiles on his sales floor.

The court found that the sale of the car by Negra to Tonolla was made in good faith; and concluded that the plaintiff, who created the appearances by which Negra was enabled to sell the automobile to a bona fide purchaser, was estopped to assert its title as against the American Trust Company, which, as found by the court, was an innocent third party for value.

The disposition of the appeal must be deemed controlled by the familiar principles stated in such eases as Tharp v. San Joaquin Valley Securities Co., 20 Cal. App. (2d) 20 [66 Pac. (2d) 230] , Western States Acceptance Corp. v. Bank of Italy, 104 Cal. App. 19 [285 Pac. 340], and Pacific Finance Corp. v. Hendley, 103 Cal. App. 335 [284 Pac. 736, 285 Pac. 1048].

The method of financing dealers in the retail sales of automobiles under the so-called “trust receipt” has come into common practice. This method enables the retail dealer to obtain advances from a financing company to pay the purchase price to the distributor and at the same time receive possession of the automobile for the purpose of placing it on the salesroom floor for exhibition and sale to a prospective customer. Title is transferred directly from the distributor to the finance company which retains such title under the trust receipt until the amount advanced as the purchase price is repaid. The validity of such trust receipts as title retention documents has been established by the courts. Subsequent to the events hereinbefore related and in 1935 (Stats. 1935, p. 1930), the legislature recognized the common practice and adopted the Uniform Trust Receipts Law, which comprises sections 3012 to 3016.16 of the Civil Code.

However, the foregoing cited eases and others have applied the exception to the general rule that the reserved title of the entruster is paramount. The exception followed the provisions of section 1142 of the Civil Code in effect prior to 1931 and was based on the principle of estoppel. The title holder, having clothed the retail dealer with all the appearances of ownership or authority to sell, could not be heard to assert title or ownership as against a purchaser for value without actual notice of the reserved title who had been led by appearances created by the true owner to believe that the dealer had authority to dispose of the title in the usual course of trade. Under such cases the rights of the purchaser did not necessarily depend on the actual title or authority of the dealer, but were derived from the act of the real owner, which precluded him from disputing as against an innocent party, the existence of the title or power which, through negligence or mistaken confidence, he had caused or allowed to be vested in the party making the sale. (Rapp v. Fred W. Hauger Motors Co., 77 Cal. App. 417, 422 [246 Pac. 1067], and cases cited supra.)

No serious attack is made upon the findings and conclusion of the court that Tonolla was led to believe that Negra had the power of disposing of the automobile under a conditional sale contract. The attack is upon the finding and conclusion of the court that the bank was also entitled to rely upon an estoppel as against the plaintiff. The evidence affirmatively shows that the bank had no actual knowledge that the automobile in Negra’s possession for sale was in fact owned by the plaintiff, or that Negra had received any financial assistance in “flooring” it. It is contended that the fact that the bank had knowledge of the practice of dealers to obtain the aid of finance companies to “floor” cars, and that some time before the transaction mentioned Negra had asked the bank if it planned to “floor” ears, was sufficient as a matter of law to put the bank on inquiry as to the title of the automobile sold to Tonolla and to preclude its reliance upon an estoppel to defeat the plaintiff’s claim of title. A somewhat similar contention was made and rejected in Fowles v. National Bank of California, 167 Cal. 653 [140 Pac. 271]. It- was there decided that knowledge of the custom of depositing with a stockbroker certificates of stock endorsed in blank for purposes of sale was not sufficient to put a pledgee on notice to inquire concerning any possible restrictions on authority to pledge. The decisions in this state do not warrant a holding that mere knowledge of the general practice of “flooring” cars is sufficient to place on inquiry one about to part with value. On the contrary the cases herein cited support the conclusion that one in the position of the bank in this case who has parted with value without actual notice, or without knowledge of facts to put it on inquiry, is protected as against the claim of the entruster under a trust receipt. The decision in the case of Henderson v. General Acceptance Corp., 209 Cal. 268 [286 Pac. 1014], does not indicate error in the court’s conclusion on the facts in the present case. In the Henderson case the appellant had knowledge of the unsatisfactory business conduct of the dealer, and had instigated some inquiry concerning the title, but with abundant facts to arouse its suspicions it stopped short of sufficient inquiry which would have disclosed the true state of the title. The record in that case, therefore, was sufficient to require affirmance of the judgment.

We are satisfied on the present record that the trial court was justified in concluding that facts were not disclosed which would place the bank on inquiry as to the true state of the title, and that Negra’s authority to sell for cash was-not exceeded by the sale to Tonolla under conditional sale contract and the receipt of Negra of the full purchase price in cash from the bank. We have recently held that authority to sell for cash confers upon the agent ostensible authority to negotiate the sale for cash or its equivalent. (Twohey v. Realty Syndicate Co., 4 Cal. (2d) 379, 382 [49 Pac. (2d) 819].) That the full purchase price in cash was received by Negra upon the sale and delivery of possession of the automobile cannot be disputed. The fact that in addition to receiving the cash Negra pledged his personal credit upon the assignment to the bank of the conditional sale contract executed by Tonolla and himself is not necessarily inconsistent with the power vested in him by the plaintiff, and is at least within his ostensible authority. We do not have here a pledge of the personal property without change of possession, which was involved in Pacific Finance Corp. v. Hendley, 119 Cal. App. 697 [7 Pac. (2d) 391]. Also in the absence of any fact or showing, and none appears, that there existed bad faith or collusion on the part of the bank in the sale, no duty devolved' upon it to see to the proper application of the funds advanced by it and received by Negra as the customer’s purchase price of the car. (Purdy v. Bank of America N. T. & Sav. Assn., 2 Cal. (2d) 298 [40 Pac. (2d) 481].)

Tonolla made no claim to the automobile, and the controversy for the possession thereof was between the plaintiff and the third party claimant. No error is shown in the court’s conclusion that the third party claimant was the rightful owner and entitled to possession.

The judgment is affirmed.

Langdon, J., Curtis, J., Edmonds, J., Houser, J., and Waste, C. J., concurred.

Rehearing denied.