5. SAME.

In an action for a partnership accounting a finding of "No," in answer to the question whether one of the partners "at his death" owned any real estate in his own right, and, if he did, to state what improvements were placed thereon and paid for with partnership funds, and whether the same were repaid, was not in conflict with a finding that at a previous date such partner erected a house on a tract of land owned by him at an expense of about $1,500, which was paid for with partnership funds; nor, assuming that it was material, was there any conflict with the further findings that this money was never directly repaid, but that this property had an annual value of at least $150, and had been used for more than 10 years both for the family of such partner and the benefit of the partnership.

6. SAME-CONDITION PRECEDENT.

Where, in an action for a partnership accounting, while it was claimed that conveyances made by one partner to another were solely for partnership purposes, it was sought simply not to set the conveyances aside, but to have the property subjected to the purposes for which it was so conveyed, the rule relative to the restoration of the consideration of a conveyance sought to be set aside was inapplicable.

Department 1. Appeal from Superior Court, Siskiyou County; J. S. Beard, Judge. Action by George E. Haight as administrator of the estate of Cornelius Haight, deceased, against Charles Haight. From a judgment for plaintiff, defendant appeals. Affirmed.

R. S. Taylor and. G. A. Teblee, for appellant. Gillis & Tapscott, for respondent.

ANGELLOTTI, J. This is an action for an accounting of the affairs of an alleged partnership existing between plaintiff intestate and defendant.

The allegations of the complaint were substantially as follows: The deceased and defendant were at the time of the death of deceased, January 2, 1902, partners in the business of farming and stock raising, and had been such for 30 years next preceding such death. Defendant kept the partnership accounts and handled the partnership funds. They acquired as such partners both real and personal property, the legal title thereto standing, however, in the name of either one or the other of the partners for long periods of time, until, finally, by deeds dated February 15, 1901, and March 23, 1901, deceased, for the better management and control of the partnership affairs, conveyed to defendant the legal title of all his undivided onehalf of certain of the real property. On October 14, 1901, he conveyed to defendant his undivided one-half of some 848 acres of land, upon the representation of defendant' that it was necessary for him to have such title in order to make suitable arrangements to pay the indebtedness of the firm. No settlement of the partnership affairs was ever had, and at the time of the death of de ceased all the land described in the complaint was in the name of defendant on the records, and this, with certain personal property, also described in the complaint, constituted the property of such partnership. The

claim of defendant, as asserted by his answer, was substantially that, while there had been a partnership, it had been finally dissolved by mutual agreement on October 14, 1901, at which time there had been a full settlement between the partners, and a delivery to each of the property belonging to him; that the property conveyed to defendant by the deeds of February 15 and March 23, 1901, was conveyed in exchange for certain real estate conveyed to deceased by defendant, and that the deed of October 14, 1901, was made in the settlement of the partnership affairs and upon a consideration; that all of the real and personal property described in the complaint was at the time of the death of deceased his own property. The findings and decree were in favor of plaintiff upon these matters. The decree adjudges the partnership to be the owner of all said property, and the plaintiff as the representative of the deceased to be entitled to a full accounting from defendant, and requires defendant to so account, and further directs that he render and file within 30 days an itemized statement of the partnership transactions, and that upon the final settlement thereof the balance remaining on hand shall be divided equally between plaintiff and defendant. Defendant has appealed from the judgment upon the judgment roll alone.

The trial court called in an advisory jury, and submitted to it certain issues of fact for determination; the questions submitted to the jury numbering 25. The court adopted as its own the findings of the jury upon the questions submitted, making also certain additional findings of its own.

It is contended that the findings are inconsistent in several particulars. In considering this claim, we must continually bear in mind the well-settled rule that the findings are to be liberally construed in support of a judgment; that all of the findings are to be read and considered together, and, if possible, are to be reconciled so as to prevent any conflict on material points, and that, unless the conflict is clear and the findings incapable of being harmoniously construed, a judgment will not be reversed on the ground of a conflict in the findings. See Ames v. City of San Diego, 101 Cal. 390, 395, 35 Pac. 1005; Murray v. Tulare Irr. Co., 120 Cal. 311, 315, 49 Pac. 563, 52 Pac. 586; People's Home Sav. Bank v. Rickard, 139 Cal. 285, 291, 73 Pac. 858; Mitchell v. Hutchinson, 142 Cal. 404, 409, 76 Pac. 55; Heaton, etc., v. Arper, 145 Cal. 282, 285, 78 Pac. 721.

The jury explicitly found, in response to four questions, that the only settlement between the partners was on October 14, 1901, and that such settlement was only a partial settlement, and covered only a portion of the personal property, and that at this settlement the personal property affected thereby was divided between the partners and the respective portions assigned to the partners delivered to them. In answer to the

final question submitted to it, which was substantially, if you find that there was a settlement of partnership affairs, and a division of the partnership, was Cornellus Haight at such time afflicted with weakness of mind, etc., the jury answered: "We find there was no settlement." It is urged that this answer is inconsistent with the others before noted. It is clearly apparent, taking all the findings together, that the last question and answer had reference solely to the full and complete settlement alleged in the answer, and, under these circumstances, there is no inconsistency whatever.

In answer to certain other questions the jury found that the real property conveyed to defendant by the deeds of February 15 and March 23, 1901, was so conveyed for the purpose of enabling defendant to manage the affairs of the partnership and to be used as partnership property, and that it was not conveyed to him for his sole use or benefit, or in exchange for real estate conveyed to Cornelius by defendant, and that the property conveyed by the deed of October 14, 1901, was intended to be used as partnership property at all times until a final settlement should be had. It further explicitly found that, at the time of death of Cornelius, all of the property described in the complaint, both real and personal, was owned by the partnership. In answer to certain other questions asked as to whether Cornelius received any consideration, or any consideration proportionate to its value, for any of the property so conveyed to defendant, the jury answered, "No adequate consideration," "No," and the consideration, if any, "was grossly disproportionate to its real value." It is urged that this presents a material conflict. It is apparent that the latter questions and answers were material only in the event that it was found that the allegations of the complaint as to the property being transferred to defendant solely as partnership property for partnership purposes were not sustained. As suggested by learned counsel for defendant, if those allegations were true, there was no room for any question as to consideration. The findings upon the questions as to the purposes and objects of the conveyances are clear and explicit in support of the allegations of the complaint, and fully cover the issues in that behalf. There is nothing in the other findings referred to that necessarily conflicts with these findings. There is no finding in terms of any consideration moving from defendant to Cornelius for any of these conveyances, and such a conclusion is not necessarily inferable from the findings made. Assuming that, if there was a consideration moving from defendant to Cornelius for the making of these conveyances, that fact would be in conflict with the other findings as to the objects and purposes of such conveyances, we would not be warranted in drawing an inference of the fact of consideration from the lan

guage of the findings for the purpose of creating a conflict. See Paine v. San Bernardino, etc., 143 Cal. 654, 656, 77 Pac. 659. It is, however, entirely consistent with the fact of a transfer of property to the partnership solely for partnership purposes that a consideration should have been given to the grantor by the other partner or partners.

Certain answers of the jury, adopted as findings, relate to the mental condition of Cornelius on February 15, 1901, March 23, 1901, and October 14, 1901, the question in each case being as to whether he was afflicted with "great or any weakness of mind either from old age, sickness, disease, use of morphine, or other cause or causes," and the answer was in one case, "Yes," and in the others, "Yes, to some extent." There is absolutely nothing in this that is in conflict with any other finding. It is suggested that the finding of a partial settlement on October 14, 1901, is in conflict with these answers, but, of course, the mere fact that there was some slight weakness of mind on the part of Cornelius, which is all that the answers show, would not preclude a valid settlement. The jury was asked to state whether Cornelius, at the time of his death, owned any real estate in his individual right, and, if he did, to state what improvements, if any, were placed thereon and paid for from the funds of the partnership, and, if so, whether the same were repaid or refunded. The answer was simply "No," being evidently to the first part of the question, viz., as to whether Cornelius owned any property in his individual right at the time of his death, January 2, 1902. The court, in its additional findings, found that in 1890 Cornelius had erected a dwelling house upon a tract of land of 30 acres owned by him in his individual right at an expense of about $1,500, which was paid from partnership funds, and had never been directly repaid, but that this separate property had an annual value of at least $150, and had been used for more than 10 years both for the support of his family and the benefit of the partnership. There is no conflict between the answer of the jury and the additional finding of the court, the answer of the jury having reference solely to the question of ownership at the time of the death of Cornelius in 1902. Nor, assuming that the matter is at all material, do we see any conflict in the additional findings of the court as to the purposes for which the income of this property was used.

In view of the claim made by the com plaint and upheld by the findings that the conveyances were made solely for the better management of the partnership affairs, and for partnership purposes, and that the property was at all times thereafter purely partnership property, we fail to perceive the applicability of the rule relative to the necessity of restoring or offering to restore whatever of value one has received for a con. veyance, before relief against a conveyance

made by reason of fraud, mistake, etc., will be allowed. This is not an action to set aside a conveyance. Plaintiff is acquiescing in the conveyances made, seeking simply to have the property, thus put for the sake of convenience in the name of one of the partners, subjected to the uses and purposes for which it was so placed.

As we have seen, it is not the effect of the findings that there was a consideration moving from defendant to Cornelius for any of the conveyances thus made, and, in view of the issues and findings upon the questions as to the sole objects and purposes of these conveyances, we deem the allegation as to want of consideration contained in the complaint immaterial and superfluous. The findings are in all material respects sufficient to cover the allegations of the answer upon the subject of the purposes of the convey

ances.

Upon the record before us, we see no ground for interfering with the judgment. The judgment is affirmed.

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

(151 Cal. 83)

SHORT v. FRINK. (Sac. 1,419.) (Supreme Court of California. April 11, 1907.) 1. PHYSICIANS AND SURGEONS-ACTION FOR MALPRACTICE-EVIDENCE-RELEVANCY.

In an action for malpractice, it appeared that defendant had been discharged by plaintiff and another physician called. The second physician did not continue in charge of the case, but his deposition was taken for the plaintiff, and, in response to a question as to why he did not call again, answered that defendant had told the witness that he (defendant) had not been discharged from the case, and had not received payment for his services. Held, that the evidence was inadmissible.

2. APPEAL-PRESERVING QUESTIONS FOR REVIEW-SCOPE OF OBJECTIONS-GENERAL OBJECTIONS.

A general objection to a question, on the ground that it is irrelevant, incompetent, and immaterial, is sufficient to preserve the question for review, if the question is objectionable from every standpoint, and if on its face there appears no purpose for which the evidence asked could be admissible.

3. SAME NECESSITY OF MOTION TO STRIKE.

The rule that a motion to strike out is essential to preserve the right to complain of a ruling admitting an answer to a question, over a general objection, is applicable only when it is not apparent from the question alone that the answer thereto will not be admissible, and the inadmissibility is disclosed for the first time by the answer itself.

4. SAME-HARMLESS ERROR-OBJECTION SUBSEQUENTLY REMOVED.

Where evidence had been improperly admitted, over defendant's objection, the error was not cured by defendant giving testimony materially differing therefrom on the same matter, purely in self-defense to meet and explain the objectionable evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4173.]

5. SAME-PREJUDICIAL EFFECT OF EVIDENCE IN GENERAL.

in an unfavorable light, it will be presumed to have that effect.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4038.]

6. SAME-PRESERVING QUESTIONS FOR REVIEW - OBJECTION TO EVIDENCE- NECESSITY OF SPECIFIC OBJECTION.

If the objection to a question in a deposition which is susceptible of a proper answer is based on the answer given and recorded, the objector must frame his objection so as to specifically call the matter to the attention of the court, or he cannot take advantage of the ruling on appeal, since the court is no more called upon to heed a mere general objection to testimony read from a deposition than when the witness is testifying viva voce.

7. SAME METHOD OF SAVING EXCEPTION AFTER ANSWER IS READ.

Where a general objection to a question in a deposition susceptible of an answer that may be properly given in evidence has been overruled, the objector's only remedy, after the answer is read, is a motion to strike out, and, in the absence of such motion, the question will not be considered on appeal, since, in the absence of actual knowledge, specific objection, or intimation to the contrary, a trial court has the right to assume that a question in a deposition susceptible of an answer properly admissible in evidence has been so answered. 8. DEPOSITIONS REQUISITES OF CERTIFICATE -MATTERS CERTIFIED-CORRECTION BY WITNESS.

Under Code Civ. Proc. 2032, providing that a deposition when completed must be read to the witness and corrected by him in any particular, if desired, and then signed by the wit ness and certified by the officer, a certificate of a notary to depositions, stating that the testimony was read over to the witness, "and being by him corrected, and was by him subscribed in my presence," is sufficient, if not otherwise objectionable.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Depositions, §§ 166, 167.]

Department 1. Appeal from Superior Court, City and County of San Francisco; Charles M. Head, Judge.

Action by B. J. Short against George K. Frink. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Goodfellow & Eells, Sweeny & Tillotson, and Braynard & Shanahan, for appellant. Walter E. Herzinger, Bush & Perry, and Reid, Dozier & Carr, for respondent.

ANGELLOTTI, J. This is an appeal by defendant, a physician and surgeon, from a judgment for $8,000 given in favor of plaintiff, in an action brought to recover damages for alleged malpractice. The only matters presented for our consideration on this appeal are certain rulings of the trial court in the admission of evidence.

Plaintiff sustained a compound fracture of the tibia bone of his right leg on December 8, 1901. Defendant was immediately employed to treat plaintiff for this injury, and continued to attend him until December 31, 1901, when plaintiff became dissatisfied with him, and, having called in Dr. Bradshaw, discharged defendant, without, however, paying him for his services. Some days later, Dr. Pratt was called in, and he continued to attend plaintiff for some 15 months. On plain

tiff's cross-examination, he was asked how many days he was without a doctor after Dr. Frink left, and said "something like six or seven days." The deposition of Dr. Bradshaw was taken without the attendance of any one on the part of the defendant. All the testimony given was elicited by questions asked by plaintiff's attorneys. It showed the results of his examination of the wound on December 31, 1901, and his opinion as to the treatment plaintiff had received. It also showed that he did what he could with the implements at hand to properly care for and relieve his suffering, and that he left with the intention of returning the following day. He stated, in reply to a question of plaintiff's attorney, that he did not again call on plaintiff. He was then asked: "Why did you not return or go back to see the plaintiff the following day?" When the deposition was read on the trial, defendant objected to this question, on the ground "that the same was irrelevant, immaterial, and incompetent, and not responsive to any issue in the case." The objection was overruled. The plaintiff then read the answer from the deposition as follows: "Because in a conversation with Dr. Frink the following morning over the telephone he informed me that he had neither been discharged from the case nor received payment for his services." Having further testified that he never returned to plaintiff, that he met Dr. Frink the following summer, and that Dr. Frink had a conversation with him in regard to plaintiff, he was asked: "What was that conversation, as near as you can give it, or the sum and substance of it?" This was objected to on the same general grounds, and the objection overruled, whereupon the answer was read as follows: "We did not discuss the plaintiff's injuries or the treatment of the same by Dr. Frink, but Dr. Frink thanked me for not interfering with his case or going to treat the plaintiff." There was no motion to strike out either of these answers. Dr. Frink, when subsequently testifying in his own behalf, said, on direct examination, that, after being discharged and told by plaintiff that Dr. Bradshaw had visited him, he told plaintiff that he would like to have his bill satisfied, and that thereafter he called up Dr. Bradshaw on the telephone, and told him that he would expect the courtesy extended from one physician to another, and would like to have the bill settled before Dr. Bradshaw took charge of the case, but that he also told him that he had been discharged. The only claim made by plaintiff's complaint was that defendant had been negligent in his treatment during the time he was attending plaintiff. There was no allegation of any act done by defendant to the injury of plaintiff subsequent to his discharge from the case, and no allegation of oppression, fraud, or malice on the part of defendant.

It is earnestly contended that the trial court erred, to the prejudice of defendant, in

allowing the answers quoted from Dr. Bradshaw's deposition to be read in evidence. As to the first of these answers, we see no escape from the conclusion that the claim of defendant is well based. The question upon its face called for matter that was not within the issues made by the pleadings, and that was wholly immaterial and irrelevant. No possible answer favorable to plaintiff has been suggested, and none has occurred to us, that would be proper evidence, in view of the issues made by the pleadings and the evidence contained in the record, and certainly the trial court was not justified in assuming that the plaintiff was seeking matter unfavorable to his cause. We must assume that all the evidence in any way material to the ruling on this matter is contained in the record. That Dr. Bradshaw did not make any subsequent call on plaintiff, and his reasons for not doing so, were apparently matters entirely foreign to the controversy. If a question is objectionable from every standpoint, if on its face there appears no purpose whatever for which the evidence asked could be admissible, a general objection of irrelevancy, incompetency, and immateriality is sufficient. See 1 Wigmore on Evidence, § 18c [1]; Swan v. Thompson, 124 Cal. 193, 56 Pac. 878. We are satisfied that it must be held that the court erred in overruling the objection.

That the matter elicited by the question was of a nature most prejudicial to defendant cannot be doubted. Its inevitable tendency was to create a belief in the minds of the jurors that the defendant had attempted to prevent plaintiff from procuring necessary medical attendance, and to accomplish this had not only told Dr. Bradshaw that he had not as yet been paid for his own services, but had gone to the extent of falsely representing to him that he had not been discharged from the case, or, in effect, that he was still the regular attending physician therein. Such a statement, if believed, would naturally have the effect of restraining Dr. Bradshaw from interfering with his brother physician's case, until such time as defendant had abandoned the same or had been finally discharged. If the jury believed that defendant had endeavored to prevent a former patient, sorely in need of medical attendance, from procuring the same, such belief would naturally prejudice them against him, and, if they further believed that he had resorted to falsehood in order to accomplish this result, such belief could but enhance that prejudice and most unfavorably affect his cause. While defendant denied that he told Dr. Bradshaw that he had not been discharged, and said that he told him that he had been discharged, no one could tell which witness the jury believed, except in so far as the verdict against defendant may indicate. It was not necessary for defendant, in order to save this point, to make a motion to strike out the testimony after it was read. It is only where it is not apparent

from the question itself that the response thereto will, upon any theory of the case, be inadmissible, and the inadmissible evidence is for the first time disclosed by the answer that the rule declared in People v. Lawrence, 143 Cal. 148, 155, 76 Pac. 893, 68 L. R. A. 193, is applicable, and a motion to strike out is essential to preserve the right of the objector to complain. Where the question upon its face shows that the testimony called for is necessarily inadmissible, the rights of a party are fully preserved by his objection to the proposed evidence, and his exception to the ruling admitting the same. In fact, this is the only way in which he can preserve his objection where the question is of such a character, and the answer is strictly responsive to the question. See People v. Long, 43 Cal. 444; People v. Scalamiero, 143 Cal. 345, 76 Pac. 1098.

Nor can we hold that the error was cured by the testimony subsequently given by defendant upon this matter, under the rule declared in Treat v. Reilly, 35 Cal. 129, that a party cannot be held to be injured by the admission or refusal to strike out objectionable testimony, if the same party afterwards introduces the same testimony. See, also, People v. Marseiler, 70 Cal. 98, 11 Pac. 503. In addition to the fact that what was said by plaintiff on this subject was said by him purely in self-defense solely to meet and explain the objectionable evidence as far as possible, and cannot well be held to have been voluntary (see 1 Wigmore on Evidence, § 18d, note), the testimony of defendant in relation to the interview between himself and Bradshaw differed materially from that given by Bradshaw, in that he said that he told Bradshaw that he had been discharged from the case, thus telling him the truth in the matter, instead of a falsehood.

It is impossible for us to say to what extent this objectionable evidence influenced the jury in rendering their verdict. Its direct tendency was to prejudicially affect defendant by placing him in a most unfavorable light, and we must presume that it had that effect. See Rulofson v. Billings, 140 Cal. 452, 460, 74 Pac. 35; Lathrope v. Flood, 135 Cal. 458, 461, 67 Pac. 683, 57 L. R. A. 215; San José, etc., Co. v. San José, etc., Co., 126 Cal. 322, 324, 58 Pac. 824; Helling v. Schindler, 145 Cal. 303, 314, 78 Pac. 710.

This error necessitates a reversal of the judgment..

For the purposes of a new trial, it is proper to state that the portion of the second answer of Dr. Bradshaw relative to the defendant thanking him for not interfering with the case, or going to visit the plaintiff, was clearly improper testimony tending to prejudicially affect defendant's cause. We think, however, that the court did not err in overruling the merely general objection made to the question, for it is not apparent from the question itself that the response would be inadmissible. As suggested by the

Court of Appeal in the opinion heretofore filed herein, the answer to this question "might have shown a direct admission of culpability by defendant." It was only after the answer was brought to the knowledge of the court that the court could determine as to whether the evidence was proper. Under such circumstances, it is the well-settled rule applicable in a case of a viva voce examination of a witness that a party must move to strike out the objectionable evidence when it is disclosed, or he is precluded from subsequently complaining. People v. Lawrence, 143 Cal. 148, 155, 76 Pac. 1116, 68 L. R. A. 193. See, also, People v. Williams, 127 Cal. 212, 216, 59 Pac. 581; O'Callaghan v. Bode, 84 Cal. 495, 496, 24 Pac. 269; Elliott on Evidence, §§ 884, 891. We do not think that the mere fact that the answer to be given was already recorded in a deposition, and therefore available for examination by the court when the objection was made, and in advance of the ruling, made it incumbent on the trial court, in the absence of request in that behalf by defendant, or specific objection showing the inadmissibility of the evidence, to examine the answer before ruling. The trial court cannot be called upon to know the contents of depositions on file, and it devolves on the party objecting to any portion of the deposition to make it appear to the court wherein any valid objection exists. If objection to a question susceptible of a proper answer contained in the deposition is based on the nature of the answer given and recorded, it is the duty of the objector to so frame his objection as to specifically bring the matter to the attention of the court. The court is no more called upon to heed a mere general objection of incompetency, irrelevancy, and immateriality, where the testimony is being read from the deposition, than it is where the witness is testifying viva voce, as to which the wellsettled rule has already been stated. In the absence of actual knowledge, specific objection, or intimation to the contrary, the trial court has the right to assume that a question in a deposition susceptible of an answer that may properly be given in evidence has been so answered, and the objector's utmost remedy, in the event that the answer is read, is, as stated in People v. Lawrence, supra, a motion to strike out objectionable evidence given in response to the question. Defendant should have moved to strike out this evidence, if he had desired to subsequently urge error in regard thereto, and, in the absence of such motion, we would not consider the matter on appeal.

It should further be stated that the trial court did not err in overruling the objection to the reading in evidence of the deposition of Dr. Bradshaw. The only objection specified thereto was that the certificate of the notary did not in terms state that the deposition, when completed and read to the witness, was corrected by the witness in every