1. CONTRACTS TRACTS-STATUTES.

A contract whereby owners of mines employed one to operate the mines, for which services the owners agreed to pay him the reasonable value thereof whenever they sold the mines, is joint and several within Civ. Code, $ 1659, providing that, where the parties who unite in a promise receive benefit from the consideration, their promise is presumed to be joint and several.

2. JUDGMENT-CO-PARTIES.

Owners of mines employed one to operate them, and agreed to pay him for his services the reasonable value thereof when the mines were sold. The mines were sold, but the services were not paid for. The employé sued the owners, one of whom appeared and answered separately, denying the contract. No objection was made to proceeding with the trial as against the answering defendant alone. Held, that under Code Civ. Proc. 88 414, 579, providing that in an action against several defendants the court may render judgment against one or more of them, etc., the court was authorized to render judgment against the answering defendant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 416, 419.]

3. TRIAL-FINDINGS-ISSUES.

Where, in an action for services performed under a contract of employment, the admitted facts establish the conclusion that the statute of limitations has not run against the claim, a finding on the issue raised by a plea of limitations is not necessary to support a judgment for plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 911.]

5. SAME.

In an action for services rendered under a joint and several contract, whereby three persons employed plaintiff to perform the services and agreed to pay him therefor, the complaint alleged that "the defendants agreed to pay plaintiff" for the services. The separate answer of one of the defendants denied that he so agreed, but was silent in regard to the fact that the other defendants agreed to pay. The court found that the answering defendant agreed to pay plaintiff. Held, that the finding covered the issue of whether the answering defendant agreed to pay, and it, together with the admission in the answer that the other defendants had agreed to pay, proved that all the defendants had agreed to pay as alleged in the complaint, authorizing a judgment against the answering defendant alone.

Adams and others. From a judgment for plaintiff, defendant Samuel B. Adams appeals. Affirmed.

Hubert T. Morrow, Oscar C. Mueller, and Sidney J. Parsons, for appellant. C. C. De Garmo and E. H. Wilson, for respondent.

SHAW, J. This case was transferred to the District Court of Appeal of the Second District, and, that court being unable to agree upon a decision, it was again transferred to this court. The following opinion prepared by Mr. Justice Allen of that court meets with our approval, and is adopted as the opinion of this court:

"Appeal by defendant Samuel B. Adams from a money judgment rendered against him alone in favor of the plaintiff.

"The complaint alleges a contract between plaintiff and defendants, by which plaintiff was to manage and operate certain mines belonging to the defendants, for which services defendants agreed to pay the reasonable value thereof, which is alleged to be $4,000, whenever the defendants sold the mines. It is further alleged that within a year preceding the bringing of the action defendants sold said mines. Nonpayment of such claim for services is alleged. Service of process does not appear from the record to have been made upon any of the defendants. Defendant Adams, however, appeared and answered separately, denying the contract as set out, and denying that he ever agreed to pay for such services, or that such services were ever rendered, or that the same were of the value alleged or any value in excess of $710. which amount is claimed to have been paid, admits the sale of the mines as alleged. A plea of the statute of limitations is also interposed. The trial court found that the contract set out was entered into between plaintiff and defendant Adams, and that Adams agreed to pay therefor the reasonable value of the services rendered when the mines were sold; that the same were rendered as alleged in the complaint, and were of the value of $4,000; and that said Adams had paid no part thereof. Judgment was rendered accordingly.

"The principal point relied upon by the appellant is that, the action being against all defendants jointly, the findings do not respond to the case made by the pleadings, in that they do not find as to the making of a contract, or the performance of services, or nonpayment as alleged; nor is there any finding upon the issue of the statute of limitations. The joint ownership by defendants of the mines, their sale, and the agreement of defendants to pay for the services of the plaintiff is not denied; the denial in the last regard being merely that Adams did not agree to pay therefor. The contract set out in the complaint was joint and several. Civ. Code, § 1659. Section 414, Code Civ. Proc., provides that when the action is

against two or more defendants, jointly or severally liable on a contract. and the summons is served on one or more but not on all of them, the plaintiff may proceed to judgment against the defendant served, etc. No objection appears from the record to have been made in the court below to proceeding with the trial as against the answering defendant alone; and under section 579, Code Civ. Proc., the court was authorized to render judgment. Kelley v. Plover, 103 Cal. 36, 36 Pac. 1020. The precise question involved here was decided adversely to appellant's contention by this court in McKee v. Cunningham, 84 Pac. 260. Nor is such decision in conflict with the various decisions cited by appellant which have reference to the character of the action as applied to its subject-matter. The admitted facts demonstrate that the findings as to the statute of limitations could not have been otherwise than against appellant. They establish the conclusion that the statute has not run, and a finding thereon was not necessary to support a judgment. Lewis v. Adams, 70 Cal. 403, 11 Pac. 833, 59 Am. Rep. 423; Winslow v. Gohransen, 88 Cal. 451, 26 Pac. 504. The finding of the court as to nonpayment is positive as to the appellant-defendant, which must be taken as including payment by him, or by any other person for him or for his benefit, either associated with him in the joint enterprise or otherwise.”

A more particular statement than is made in the foregoing opinion will show that there is no variance with respect to the contract alleged and that stated in the findings. It is not necessary in every case that there should be findings upon all the allegations of the complaint. The findings must respond to the issues only, and the true rule is that there must be a finding upon every material fact alleged in the complaint and controverted by the answer, provided it is necessary to support the judgment rendered in the action. The findings in this case conform to this requirement. The complaint alleges that "the defendants agreed to pay plaintiffs" for the services; that is, in effect, that all three defendants so agreed. The answer denies that the defendant Adams so agreed, and is silent in regard to the fact that the other defendants agreed to pay. Every fact not denied by the answer is admitted to be true, and hence the case was submitted with the admission that the other two defendants had agreed as alleged, leaving the court to find only as to whether or not Adams had agreed. The finding that Adams did agree to pay the plaintiff exactly covered the issue in this respect, so that, together with the admission, it was fully established that all the defendants had agreed as alleged in the complaint. As Adams alone had then appeared, judgment was properly given against him alone.

With respect to the finding of nonpayment,

the rule applies that upon an appeal from the judgment roll alone the language of the findings is to be given the broadest possible meaning, whenever it is necessary to do so in order to support the judgment. If, by any usage of the English language, the finding that Adams has not paid for the plaintiff's services can be construed to imply that the debt to the plaintiff remains unpaid, then, upon this appeal, the finding is sufficient on that point. A payment by one joint obligor is, in contemplation of law and so far as the obligee is concerned, a payment by all. Each joint obligee is, in law, the agent of the others to make such payment. If one of the others had in fact paid the plaintiff, he would have paid for Adams, as well as himself, and it would be a legal truth that Adams had paid. So the statement that Adams has not paid, in its broadest sense, is a statement that he has not paid, either in person, or by his co-obligors. So understood, it means that none of them has paid and that the debt remains unpaid. This form of statement might be insufficient in a pleading, if the objection were raised by demurrer, but it is sufficient in a finding upon an appeal from the judgment roll alone. The judgment is affirmed.

OR Books

2. SAME ASSESSMENT ROLLS STATUTORY PROVISIONS-AFFIDAVITS.

Pol. Code, § 3885, provides that no assessment or act relating to assessment or collection of taxes is illegal on account of informality, nor because the same was not completed within the time required by law. The clerk of the board of supervisors delivered the corrected assessment book to the county auditor, but did not affix to it an affidavit, as required by Pol. Code, 3682, and the auditor delivered it to the tax collector, but also failed to attach his affidavit, as required by Pol. Code, § 3732. Held, that where the clerk and the auditor, respectively, made and attached the affidavits required by them before plaintiff made his protest or paid any taxes, and no injury was caused to him by the delay, the assessment was not invalid because of the delay.

3. SAME-NOTICE TO TAXPAYERS.

In an action to recover invalid taxes paid under protest, where on a former appeal it was de cided that the failure of the tax collector to give notice to the taxpayers would not make the tax invalid, the giving of this notice before the affidavits of the clerk of the board of supervisors and the auditor were affixed to the assessment

book, as required by Pol. Code, §§ 3682, 3732, did not render the tax invalid.

4. APPEAL-DETERMINATION AND DISPOSITION OF CAUSE-NEW TRIAL.

Where the facts upon which the decision of a case depends were agreed upon by the parties, and are fully set forth in the findings, there is no necessity for a new trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4597.]

Department 1. Appeal from Superior Court, Kern County; J. W. Mahon, Judge. Action by Henry Miller against Kern county. From a judgment for plaintiff, defendant appeals. Reversed and modified.

U. S. Webb, Atty Gen., J. W. P. Laird, and Rowen Irwin, for appellant. Isaac Frohman and Frohman & Jacobs, for respondent.

SHAW, J. This case is docketed under the above numbers; No. 1,741 being an appeal from the judgment, and No. 1,762 an appeal from an order denying defendant's motion for a new trial. We have concluded that the judgment must be reversed, with directions to enter a modified judgment on the findings. The action is brought under section 3819 of the Political Code, to recover taxes claimed to be illegal and paid under protest. The case was before this court upon a former appeal by the plaintiff from a judgment given in favor of the defendant, upon a demurrer to the complaint. Upon that appeal the judgment was reversed. Miller v. County of Kern, 137 Cal. 516, 70 Pac. 549. Many questions arising in the case were decided against the plaintiff on that appeal, and are not now argued. After the case again reached the lower court, an was filed denying the facts upon which the reversal was based. Upon the trial, an agreed statement of facts was filed, from which the court made findings and gave judgment in favor of plaintiff as prayed for.

answer

1. Upon the former appeal it was decided that growing alfalfa is not subject to taxation, and hence that the item of $1,110, paid by plaintiff as taxes levied on certain growing alfalfa assessed at $60,000, was invalid. The court below, upon the subsequent trial, declared the entire tax invalid, and gave judgment for the taxes paid, with interest thereon from the date of payment to the time of trial. The appellant concedes the invalidity of the tax as to the sum of $1,110, levied upon growing alfalfa, but insists that no interest should have been allowed thereon, until after judgment. In this the appellant is correct. In Sav. & L. Soc. v. San Francisco, 131 Cal. 356, 63 Pac. 1013, and Columbia Sav. Bank v. Los Angeles, 137 Cal. 471, 70 Pac. 308, it was, in substance, held that in an action to recover taxes paid under protest, under section 3819 of the Political Code, interest after payment and before trial was not allowable, and that interest could only be allowed against the county and state from the time of the adjudication declaring the money due. The judgment now appealed from

was rendered on November 22, 1904. It was correct to the extent of $1,110, and no more. Upon the going down of the remittitur the plaintiff will be entitled to judgment for that sum with legal interest from the date above given. Columbia Sav. Bank v. Los Angeles,

supra.

2. The only points upon which it is now claimed that the balance of the tax paid was invalid are: First, that although the clerk of the board of supervisors deliverd the corrected assessment book for the year 1895 to the county auditor on the first Monday of August, 1895, the time required by section 3682, Pol. Code, he did not affix to it, nor accompany it with, an affidavit, as required by that section, that the affidavit was made and affixed to the book on November 1, 1895, and not before; and, second, that the auditor, after computing and extending the taxes on the book, delivered it to the tax collector on the second Monday of October, 1895, as required by section 3732 of the Political Code, and did not then, nor at all, until November 1, 1895, make or attach to the book his affidavit in authentication thereof, as required by that section, and that, in the meantime, the tax collector had published the notice to taxpayers, as required by section 3746, Pol. Code. The allegations of the complaint are that the corrected assessment book, when it was delivered by the clerk of the board of supervisors to the auditor, and thereafter when delivered by the auditor to the tax collector, was not accompanied by the affidavit required by section 3682, nor by any affidavit, nor was any affidavit of the auditor attached thereto, as required by section 3732, when it was delivered to the tax collector. In the decision upon the former appeal, these allegations were admitted by the demurrer, and as it did not appear, and was not presumed, that the affidavits had been attached after delivery, the case was decided upon the theory that they had never been attached, and were entirely lacking. Upon that assumption, the taxes were said to be void; but the question of their validity in case it should afterwards be shown that the proper affidavits were attached after the respective deliveries of the book was expressly left open and undecided. Upon the subsequent trial in the lower court, in response to the allegations of the answer, the court made findings that on November 1, 1895, after the assessment book was delivered to the tax collector, and after publication by him of the notice to taxpayers, the clerk of the board of supervisors and county auditor, respectively, made and attached to the book the affidavits required of them, respectively, by sections 3682 and 3732 aforesaid. The plaintiff did not make his protest, nor pay any taxes, until November 25, 1895. At that time the affidavits were attached as required. There is no claim that the delay in attaching them, or their absence prior to November 1st, caused any injury to the plaintiff or affected him

in any manner. We are of the opinion that the defect previously existing in the assessment, by reason of the lack of these affidavits, was cured by the facts as above found by the court. The making and attaching of these affidavits to the assessment book is required, as stated by this court upon the former appeal, for the purpose of authentication. They are "acts relating to the assessment or collection of taxes," beyond doubt. Section 3835 of the Political Code is as follows: "No assessment or act relating to assessment or collection of taxes is illegal on account of informality, nor because the same was not completed within the time required by law." There was not an entire failure to perform the acts of making and affixing the affidavits. They were properly made and affixed, but not within the time specified in the Code. No injury was caused, and we cannot see that any injury could be caused, by the delay. By the express language of section 3885 the delay did not make the affidavits or the assessment in question illegal. They were lawfully made and attached, and if the assessment was previously invalid for lack of them, as had been, in effect, decided for the purposes of this case, it became valid and lawful the moment they became attached to the book on November 1, 1895. This is a reasonable doctrine, and we perceive no benefit, public or private, to be derived from holding the contrary. It is fully supported by the decisions in similar cases. Buswell v. Supervisors, 116 Cal. 354, 48 Pac. 226; People v. Eureka, etc., Co., 48 Cal. 146; Hart v. Plum, 14 Cal. 155; Payne v. San Francisco, 3 Cal. 126; State v. Mining Co., 15 Nev. 388; State v. Western U. T. Co., 4 Nev. 344; Walker v. Edmunds, 197 Pa. 647, 47 Atl. 868; Hooker v. Bond, 118 Mich. 257, 76 N. W. 405; 1 Cooley on Taxation (3d Ed.) 486.

It is suggested that the fact that the tax collector had given the notice to the taxpayers, as required by section 3746, before these affidavits were attached, made the defect incurable, unless a new notice was given thereafter, which does not appear to have been done. This proposition is sufficiently answered by the decision upon the former appeal in this case, wherein it was held that an entire failure to give this notice would not make the tax invalid. 137 Cal. 524, 70 Pac. 549. Conceding, therefore, that the tax could not lawfully have been collected prior to November 1st, and assuming that then, for the first time, the tax collector received a valid assessment book for that year, and that his previous notice to taxpayers was ineffectual, his subsequent failure to give the notice would not affect the validity of the tax, nor authorize its recovery after payment under protest.

The facts upon which the decision of this case depends, having been agreed upon by the parties, and being fully set forth in the findings, there is no necessity for another trial.

Where, in a proceeding to recover taxes paid under protest, the findings of the court are in accordance with an agreed statement of facts signed by the parties, and the rights are fully disclosed thereby so that justice can be done by a modification of the judgment which includes items not authorized by the findings, no further proceedings are necessary.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4484.]

Department 1. Appeal from Superior Court, Kern County; J. W. Mahon, Judge.

Action by the Kern Valley Water Company against the county of Kern. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

U. S. Webb, Atty. Gen., J. W. P. Laird, and Rowen Irwin, for appellant. Isaac Frohman and Frohman & Jacobs, for respondent.

SHAW, J. The defendant appeals from the judgment upon the judgment roll. The action is brought under section 3819 of the Political Code, to recover taxes alleged to be illegal and paid under protest.

1. So far as the claim of illegality is founded upon the failure of the clerk of the board of supervisors and the county auditor, respectively, to attach an affidavit to the assessment book, as required of them, respectively, by sections 3682 and 3732 of the Political Code prior to November 1, 1895, the decision must be against the plaintiff, upon the authority of the opinion in the case of Miller v. County of Kern (L. A. No. 1,741) 90 Pac. 119, decided concurrently with the present case, wherein the question is sufficiently discussed.

2. The judgment for the plaintiff was for the sum of $1,900.96. The items composing

this sum were $1,110, assessed upon a certain canal; $67.52, assessed upon certain lands; and $723.44, allowed by the court as interest on the first two items from the time of payment thereof under protest, until November 22, 1904, the date of the judgment. Upon the authority of Sav. & Loan Soc. v. San Francisco, 131 Cal. 363, 63 Pac. 665, Columbia Sav. Bank v. Los Angeles, 137 Cal. 471, 70 Pac. 308, and Miller v. County of Kern, supra, the allowance of interest thus made must be held erroneous.

3. The canal above mentioned was situated in more than one school district, and also in more than one road district. The assessment, however, did not show in what school districts and road districts it was thus situated, nor were the respective parts of the canal situated in the respective road districts separately assessed, or otherwise designated, so that the tax due in each district could be ascertained therefrom. This rendered the tax on that item of the assessment void. It was so decided in Kern V. W. Co. v. County of Kern, 137 Cal. 511, 70 Pac. 476, which was a former appeal in this case. The item of $67.52 was claimed to be void for the same reasons, and the facts were so alleged in the complaint. When the cause again came up in the lower court after the reversal on the former appeal, issue was taken on these allegations by the answer, and the court in response thereto made findings that the allegations of the complaint were untrue, and that the assessment book did show in what school districts and road districts, respectively, the lands were situated, and that they were separately assessed accordingly. We are at a loss to understand the reason for including this item in the judgment, and, as the respondent advances none, we presume it was an inadvertence. judgment is to this extent erroneous. The facts were found by the court in accordance with an agreed statement thereof signed by the parties, and the rights are fully disclosed thereby. No further proceedings appear to be necessary. The appellant does not claim that the judgment is erroneous in any other particulars than those above giv

en.

The

Justice can be done by a modification of the judgment by this court.

The judgment of the superior court appealed from is modified by striking therefrom the item of $723.44, allowed as interest, and the further sum of $67.52, included therein for taxes paid on property of the plaintiff other than the canal. The judgment as thus modified will be for the sum of $1,110, and will stand as a judgment of its date, November 22, 1904, and is to bear interest from and after that date at the legal rate of 7 per cent. per annum, and as so modified the judgment is affirmed. The appellant will recover the costs of appeal.

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

(151 Cal. 32)

JACKSON v. PORTER LAND & WATER CO. (L. A. 1761.)

(Supreme Court of California. April 4, 1907. Rehearing Denied May 4, 1907.) SALES-ACCEPTANCE-WAIVER OF DEFECTS.

Where a purchaser under an executory contract for the sale of personal property finds from examination that the property does not conform to the contract, he must promptly reject it, and a delay of nearly three months in rejecting a pumping plant, during which time the purchaser operated the plant for his own benefit, without notice to the seller of any insufficiency, was equivalent to an acceptance of the plant, and a waiver of any defect therein. [Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 457.]

Department 1. Appeal from Superior Court, Los Angeles County; M. T. Allen, Judge.

Action by Byron Jackson against the Porter Land & Water Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

Ward Chapman and J. G. Chapman, for appellant. John D. Pope, for respondent.

LORIGAN, J. This action was brought to recover the contract price for furnishing and erecting pumping machinery.

The trial court found: That the parties entered into a contract on June 2, 1902, whereby plaintiff was to erect on the premises of defendant a pumping plant consisting of a 35 actual horse power Olds distillate engine with a 110-gallon oil tank, together with a horizontal centrifugal pump of a capacity to elevate 350 inches of water 24 feet high, said plant, and all connections to be first class and connected with defendant's 15 wells, the plant to be completed within 30 days and guarantied to perform the work as specified, the purchase price being $3,250. The time provided in the agreement for installing the pumping plant was waived by the defendant. That plaintiff performed all the conditions of the agreement except that he did not erect or furnish a 35 actual horse power engine as provided in the contract, but, on the contrary, the engine erected by plaintiff on said premises and as part of said pumping plant was materially less than 35 horse power. That said engine was not capable of providing the necessary power to raise the amount of water in said contract required. That on the 12th of August, 1902, the pumping plant including the engine, was received by defendant, but was not to be considered accepted till examined by an expert to be called by defendant. That said pumping plant was operated by defendant continuously from the 12th day of August. 1902, to the 7th day of September, 1902, when an expert called by defendant examined the same and found only a trivial defect in the governor attached to the engine, which was promptly remedied, and thereafter defendant