to its former perfect condition, the position of appellants becomes untenable. The fire loss suffered by plaintiff was less than the actual value of the car with repairs actually made and parts replaced. Under these circumstances the most appellants can claim is a pro tanto reduction of liability to the extent of the value of any repairs yet to be made, and of parts still to be replaced. The trial court was of that view. It gave appellants the benefit of such reduction and allowed the value of the accessories and equipment not destroyed by the fire. Its ruling was correct. Such construction is reasonable and just to both parties to the contract. It is not necessary, in laying down such rule of law in a case of first instance in this court, to seek to justify its assertion by recourse to the well-established principles that policies of insurance are to be construed liberally in favor of the assured and that any uncertainty or ambiguity in such contracts must be construed most strongly against the insurer. The plain reading of the provision in the policy, in the light of the purposes for which the separable contracts of indemnity against loss are intended, justifies the construction placed thereon by the lower court.

The judgment is affirmed.

Wilbur, J., Kerrigan, J., Seawell, J., Lawlor, J., and Shaw, C. J., concurred.

Rehearing denied.

All the Justices concurred.

[L. A. No. 7259. In Bank.-January 12, 1923.]

JOSEPH B. DABNEY, Appellant, v. HENRY WILHELM et al., Respondents.

[1] APPEAL ORDER SUSTAINING OBJECTION TO TESTIMONY-DISMISSAL. No appeal lies from an order sustaining an objection to the tak ing of any testimony in a cause on the ground that the complaint does not state a cause of action, since the order is not one mentioned among the interlocutory orders which section 963 of the Code of Civil Procedure makes the subject of appeal, but it may be reviewed upon appeal from the judgment as an intermediate order which necessarily affects the judgment.

APPEAL from an order of the Superior Court of Los Angeles County sustaining an objection to the taking of any testimony in an action. John M. York, Judge. Appeal dismissed.

The facts are stated in the opinion of the court.

Robert M. Pease for Appellant.

Claud B. Andrews, Carnahan & Clark and John G. Gillham for Respondents.

WASTE, J.-The plaintiff brought an action seeking to compel specific performance of an alleged agreement made by certain of the defendants to enter into an oil lease. A general demurrer to the amended complaint was overruled, and the defendants answered. The case came on for trial, and stipulations as to further amendments to the complaint and as to certain facts were filed. Defendants thereupon objected to the taking of any testimony, on the ground that the amended complaint did not state a cause of action, and the court sustained the objection. The plaintiff is here seeking a reversal of that order. "The appeal, of course," he says, "is taken on the judgment roll."

[1] An examination of the record brought here in the transcript discloses that apparently no judgment was ever entered in the case. We may well assume that to be the fact, for the clerk's certificate to the purported judgmentroll makes no mention of such judgment and, according to

the notice, the appeal is taken "from the judgment and order sustaining the objection to the taking of any testimony in said cause, and from the whole thereof," further reference being made to the minute order of the court sustaining the objection to the taking of testimony. No appeal lies from such order. (Code Civ. Proc., sec. 963.) It is not one mentioned among the interlocutory orders which the statute makes the subject of appeal. It may be reviewed upon appeal from the judgment as an intermediate order which necessarily affects the judgment. (Clifford

v. Allman, 84 Cal. 528, 533 [24 Pac. 292]; Swain v. Burnette, 76 Cal. 299, 302 [18 Pac. 394].)

The appeal is dismissed.

Wilbur, J., Lawlor, J., Seawell, J., Shaw, C. J., and Kerrigan, J., concurred.

[S. F. No. 6523. In Bank.-January 18, 1923.]

CHARLTON SILK COMPANY, Appellant, v. JOHN R. JONES, Special Administrator, etc., Respondents.

[1] INTERSTATE COMMERCE- - FOREIGN CORPORATION RECOVERY OF PRICE OF GOODS-CODE PROVISIONS INAPPLICABLE.-A shipment of goods from another state by a manufacturing company having its principal place of business therein to customers in this state upon orders obtained herein by its traveling salesman is business done in interstate commerce, and the provisions of section 405 et seq. of the Civil Code prior to their repeal (Stats. 1917, p. 381) were not applicable to an action to recover the purchase price, because the right to collect the proceeds of interstate commerce is incidental thereto and cannot be prevented by state legislation.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, Judge. Reversed.

The facts are stated in the opinion of the court.

Nowlin, Fassett & Little and Ernest K. Little for Appellant.

C. M. Jennings for Respondents.

Henry G. W. Dinkelspiel, John R. Jones, William T. Craig, John E. Carson and W. P. Smith, Amici Curiae.

WILBUR, C. J.-This is an action to recover the purchase price of goods, wares and merchandise. The action was begun June 27, 1910, before the enactment of the Statutes of 1917 (Stats. 1917, p. 381) repealing sections 405, 406, 408, 409 and 410 of the Civil Code. The court found that the plaintiff's principal place of business was the city of Chicago, state of Illinois, where it was engaged in the manufacture and sale of dry-goods at wholesale.

"That the plaintiff sent out traveling salesmen to California and said traveling salesmen solicited and received orders for merchandise and sent said orders to the plaintiff in Chicago, and the goods so ordered were then shipped by the plaintiff to its customers in California.”

[1] This finding establishes the fact that the business done was in interstate commerce and that, therefore, the provisions of sections 405 et seq., Civil Code, do not apply because the right to collect the proceeds of interstate commerce was incidental thereto and cannot be prevented by state legislation (Sioux Remedy Co. v. Cope, 235 U. S. 197 [59 L. Ed. 193, 35 Sup. Ct. Rep. 57, see, also, Rose's U. S. Notes]; W. W. Kimball Co. v. Read, 43 Cal. App. 342 [185 Pac. 192]; Moon v. Martin, 185 Cal. 361).

Judgment reversed.

Lawlor, J., Kerrigan, J., Seawell, J., Myers, J., and Waste, J., concurred.

[S. F. No. 10075. In Bank.-January 22, 1923.]

In the Matter of the Estate of GUSTAVUS W. DORN, Deceased. JOHANNA F. AHLBORN et al., Appellants, v. SADIE P. DORN, Respondent.

[1] ESTATES OF DECEASED PERSONS-WILL CONTEST BEFORE PROBATE— EFFECT OF JUDGMENT.—A judgment in a will contest before probate is only conclusive with respect to the question of the admission of the will to probate, and is not a final adjudication of the validity of the will.

OF CONTEST AFTER PROBATE.-In view of sections 1327 and 1333 of the Code of Civil Procedure, a will which has been admitted to probate after contest by certain heirs may be contested at any time within one year after such probate by other heirs who did not participate in such contest.

APPEAL from an order of the Superior Court of Alameda County dismissing a petition for revocation of the probate of a will. E. C. Robinson, Judge. Reversed.

The facts are stated in the opinion of the court.

Wm. H. Chapman, Edwin L. Forster and Franklin T. Poore for Appellants.

Welles Whitmore for Respondent.

MYERS, J.-In this case a will had been offered for probate, and a contest thereto, before probate, had been filed by two children of the testator, alleging various grounds of contest. This contest was tried, resulted adversely to the contestants, and the will was thereupon admitted to probate. Within a year thereafter another child of the testator filed a petition for revocation of the probate, upon substantially the same grounds which had been alleged in the contest before probate. The trial court dismissed this petition on motion, on the ground that the judgment in the contest before probate, being a proceeding in rem, was conclusive upon all persons interested in the estate, whether they participated in that contest or not.