purchase it was uncertain what number of bundles would be needed for that purpose. Only 200 bundles were actually taken on board of the Hesperus, that being all that proved to be necessary to fill the ship. The remainder, about 275 bundles, were left on the wharf. Defendants claimed that under the contract they were to have 500 bundles, or more or less than that number, as might reasonably be found necessary to fill the ship, or at their election; and that as they did not require any more than the 200 bundles for that purpose, and as they in fact never received any more than that number, they were only bound to pay for 200. But it was held at the trial that there was no latent ambiguity in the contract, and that its construction was for the court. Defendants offered to prove by parol that both parties understood the contract differently and that it was not intended to cover more than enough to fill the ship, and they offered to prove the declarations and acts of the plaintiff before, at the time of, and after the making of the contract, for the purpose of showing that he so construed it; but the judge excluded the evidence. On the appeal the Supreme Judicial Court said: "We are unable to perceive any ground on which it can be held that this contract falls within any of the exceptions to the familiar and well-established rule which excludes all parol evidence in the construction of the written agreements of parties. The language in which it is expressed is not technical, nor is it alleged to have any peculiar or local signification, or to have been used with reference to any custom or usage, which would vary or change its natural and ordinary meaning. Nor are the terms of the contract rendered uncertain or doubtful by reference to extrinsic facts, so as to create a latent ambiguity. The words 'more or less,' which seem to have given rise to the contention between the parties, have a plain, ordinary, and popular signification, and are often used in contracts relating both to real and personal estate." After speaking of the sales of merchandise, especially in large quantities, where these terms are frequently used in connection with the specific quantity named in the contract, the court said: "But in such cases parol evidence is not admitted to show that the parties intended to buy and sell a different quantity or amount from that stated in the written agreement. On the contrary, it is held to be a contract for the sale of the quantity or amount specified; and the effect of the words 'more or less' is only to permit the vendor to fulfill his contract by a delivery of so much as may reasonably and fairly be held to be a compliance with the contract, after making due allowance for an excess or short delivery arising from the usual and ordinary causes, which prevent an accurate estimate of the weight or number of the articles sold." It was held that the readiness to deliver 475 bundles was sufficient compliance, and that "a variation of 5 per cent. in so large a quantity was not such a deficiency as to fall outside of the fair and reasonable limit of short delivery." In Creighton v. Comstock, 27 Ohio St. 548, the sale was of timber "supposed to be twentythree thousand feet white pine timber, more or less, now lying in the river immediately under said Creighton's logway in the Ohio River at Columbus." A delivery of 16,000 feet was held to be insufficient, and involved too great a variation or deficiency to be brought within the meaning of the term "more or less." In Holland v. Rea, 48 Mich. 218, 12 N. W. 167, the court held that 473,000 feet of lumber would not satisfy a call for 500,000 feet, "more or less." See, also, the rule stated in Kirwan v. Van Camp Packing Co., 12 Ind. App. 1, 39 N. E. 536. Respondent cites the case of Day v. Cross, 59 Tex. 595. In that case the sale was of all the cattle of certain brands, 10,000 head, more or less, except a certain number of the cattle of certain brands. The court held that it was not a guaranty as to the number of the cattle in said marks and brands, but a contract for the sale of the marks and brands, and that the seller was only bound to exercise good faith, care, skill, and energy to collect the cattle, taking them from the range where they were accustomed to run at the making of the contract. Here the controlling feature was the marks and brands, and not the designated number as indicating what was sold. In Tilden v. Rosenthal, 41 Ill. 385, 89 Am. Dec. 388, by the written contract defendant agreed to deliver on a certain day "262 head, more or less, of good fat cattle to average thirteen hundred pounds, and are the cattle known as the McCoy and Bishop lot, now being fed in the vicinity of Council Bluffs, Iowa." Plaintiffs tendered 178 head, which defendants refused to receive and plaintiffs brought suit for this number. The court held that the phrase "more or less" was used by the parties to cover such trifling deficiencies in number as might be caused by the ordinary casualties of death or loss. "But," said the court, "the deficiency was nearly one-third of the whole number contracted for. We are not prepared to say that, when a person contracts for a lot of cattle containing 262 head, he shall accept 178." See cases collected in Benjamin on Sales, * * 692 et seq. For discussion of rule in sale of land see Belknap v. Sealey, 14 N. Y. 143, 67 Am. Dec. 120, and note; Harrell v. Hill, 19 Ark. 102, 68 Am. Dec. 202. Appellants make no point in their brief as to the 17 tons for which they allege that they agreed to pay the market value. The sole question discussed relates to the liability of defendants for the 166 tons of grapes which they refused to accept. Our conclusion is that in accepting the 256.817 tons defendants became liable therefor at the contract price, but that they were not bound to accept the excess tendered by plaintiffs and refused by defendants. The judgment and order are reversed. We concur: HART, J.; BURNETT, J. On Petition for Rehearing. It is urged in the petition for rehearing that the written memorandum did not constitute the whole of the agreement entered into, the remaining portion being verbal, without which latter there was no complete agreement; that this is a case "where a verbal contract is entire, and a part only in part performance is reduced to writing"; and that in the decision heretofore rendered due consideration was not given to the contention of respondents in these particulars. We think the case, as to the matters above referred to, should be again examined. The cause will The rehearing is granted. be placed at the foot of the April calendar and the parties notified hereof. We concur: BURNETT, J.; HART, J. On Rehearing. In their petition for rehearing plaintiffs urged that the written memorandum did not constitute the whole of the agreement between the parties; but that there were conditions resting in parol, which were an essential part thereof, and that the case presents an instance "where a verbal contract is entire, and a part only in part performance is reduced to writing," and hence parol testimony was admissible to establish the complete agreement. We do not think that an extended discussion is called for in disposing of plaintiffs' contention. It may be conceded, and as we understand defendants' position they admit, that where the contract appears to be merely an incomplete memorandum, or to be partly in writing and partly in parol, extrinsic evidence is admissible to show what the mutual stipulations were. But this is true only as to such matters concerning which the written memorandum is silent or as to which terms are used which import ambiguity or uncertainty; i. e., which on their face admit of doubt as to what the parties meant by their use. There is another principle to be observed, namely, that whatever the law implies from a contract in writing is as much a part of the contract as that which is therein expressed; and to the extent that the contract, with that which the law implies, is clear, definite, and complete, it cannot be added to, varied, or contradicted by extrinsic evidence. A still further principle is not to be overlooked, namely, extrinsic evidence is not admissible to show that a contract was partly written and partly oral if the matter proposed to be made part of the contract by such evidence is inconsistent with the terms of the writing. We may add a still further and salutary rule, which has been recently given careful and extended discussion by this court, in the case of Hale Bros., Inc., v. Milliken, (Cal. App.) 90 Pac. 365, and it is this: While it is competent in construing a contract to show the situation of the parties, the subject-matter of the contract, and acts of the parties under the contract, as tending to show how they understood it, still this cannot be done to the extent of varying or contradicting a written contract, where such contract is certain, complete, and unambiguous. The foregoing principles are stated to be the law in the very well-reasoned case, supported by cited authorities, of Fawkner v. Smith Wall Paper Company, 88 Iowa, 169, 55 N. W. 200, 45 Am. St. Rep. 230. In that case the memorandum read as follows: "On demand I promise to deliver to the order of E. F. Fisher Eight hundred dollars (less twenty per cent. discount), in wall paper, at wholesale prices, good, clean, assorted stock out of my store on Fifth Street, Des Moines, Iowa. No storage. Lew Smith Wall Paper Co." The defendant pleaded that at the date of making the order, and of its acceptance by Fisher, the wholesale price for good, clean, assorted wall paper, and the price upon which said order was based, and at which said paper was to be delivered by the defendant to, and accepted by, the payee was agreed upon, and set forth on a card then shown Fisher; that the schedule of prices printed upon the card was then agreed upon between the parties to said order as the then wholesale prices at which paper was to be delivered, and said card accompanied the order, as a part of it, and a part of the contract fixing the wholesale price of said paper. Defendant was permitted to prove at the trial that, when the contract was made between the parties, he handed the plaintiff's assignor a card, having printed thereon a price list of wall paper, and that he was to take the paper mentioned in the contract at the prices stated on the card. It was not attached to or made part of the written contract or referred to in it. The evidence was objected to, as tending to vary and contradict the written contract of the parties. Defendant claimed that the evidence was admissible as constituting part of the contract; that, though it was on a separate piece of paper, still it was in fact but a part of and altogether constituted but one contract. The Iowa Supreme Court held that the lower court erred in admitting the evidence. In speaking of the terms "wholesale price," the court said: "There is no claim that the schedule of prices, as set forth on the card introduced in evidence, was to be a part of the written contract, and was omitted by accident, mistake, oversight, or fraud. No such issue is presented. The evidence objected to would work a material change in the terms of the contract. It shows that the paper was to be received at a price which was agreed upon when the contract was executed, and outside of the provisions of the written contract. It measured the amount of paper that should be received under the written contract by the then wholesale market price, when the written contract measured the amount of paper to be delivered under it by the wholesale price at the time of demand made for the goods." In the case here the sole controversy relates to the quantity of grapes which defendants agreed to receive. It is true the contract is silent as to the agreement of de fendants to receive any of the grapes. But they did receive them and no question arises as to this. The law would have implied an agreement to pay at the stipulated price for all grapes received by them of the quality named. True, also, that the contract is silent as to the varieties of the grapes, but as all bore the same price, and as no dispute arose upon this point, the fact is immaterial. So also as to the omission to state when the delivery was to be made or whence the grapes were to come. Reduced to the actual matter in controversy, the sole dispute was whether plaintiffs could prove by parol testimony that defendants had agreed to receive all of plaintiffs' crop, or to receive 166 tons of grapes in excess of the "250 tons more or less," specified in the written memorandum. It is not necessary to repeat the observations upon this point heretofore made. We are still of the opinion that extrinsic evidence was not admissible to materially add to the quantity mentioned in the memorandum. The principle invoked by respondents, when rightly applied, affords them no relief. For the reasons stated in our former opinlon and herein, the judgment and order are reversed. We concur: HART, J; BURNETT, J. (5 Cal. A. 558) (Court of Appeal, Third District, California. May 20, 1907.) 1. MUNICIPAL CORPORATIONS - INJURIES TO PROPERTY-TORTS BY AGENTS-LIABILITY. A municipality is not liable for injuries to property resulting from torts committed by its agents acting outside the scope of the powers conferred on it. [Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 1566, 1584.] 2. SAME. A complaint, in an action against a city for the malicious destruction of private property, which alleges that the street commissioner was directed to destroy the property, and which shows that the city itself destroyed the property, without averring any agency through whom it was accomplished, and which shows that the acts complained of were outside of any general or special powers given to the city, states no cause of action against the city. [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1546.] Appeal from Superior Court, Sonoma County; A. G. Burnett, Judge. Action by the Healdsburg Electric Light & Power Company against the city of Healdsburg. From a judgment for defendant on sustaining a general and special demurrer to the complaint, plaintiff appeals. Affirmed. Wright & Lukens, for appellant. J. A. Barham, for respondent. CHIPMAN, P. J. Action for damages alleged to have been caused by the oppressive, malicious, and violent acts of defendant, resulting in the destruction of parts of plaintiff's plant and with intent to compel it to discontinue business. A general and special demurrer was sustained, and, plaintiff failing to amend, judgment passed for defendant, from which plaintiff appeals. It is alleged in the amended complaint that plaintiff is a corporation formed under the laws of this state for the purpose of supplying electric light and power to the residents of the city of Healdsburg, and that plaintiff ever since March 15, 1899, has been and on that day was lawfully so engaged. The complaint then describes the property and apparatus constituting plaintiff's plant; avers, in paragraph 7, that the said plant was not injurious to health or offensive to the senses or in any wise interfered with the comfortable enjoyment of life or with the free use and passage of the public parks and streets of said city and in no manner constituted a nuisance, public or private. That on February 6, 1899, defendant, "well knowing the premises but solely with the design and intent to oppress this plaintiff, and to compel it to discontinue its business aforesaid, duly passed an ordinance designated 'Ordinance No. 81,' in the words and figures as follows." Then follows the ordinance, which purports to prescribe the kind and character of the material to be used in the construction, maintenance, and repair of electric lighting plants, or systems now in use in the city of Healdsburg, or to be hereafter erected therein. The amended complaint next charges that with like intent the said city on the same day duly passed ordinance No. 82, which declared certain described electric poles and wires to be a nuisance. It is next alleged that with like intent defendant, on March 10, 1899, served written notice upon plaintiff, directing it "within four days from the hour of 7 o'clock of the forenoon of the 11th day of March, 1899," to abate and remove all its unpainted electric poles now standing, etc., and all wires conducting electricity not properly insulated. Defendant was further directed to comply with the provisions of said ordinances Nos. 81 and 82, copies of which were attached to said notice. It is then alleged that on March 14, 1899, all the trustees of defendant met, and with like design and intent to oppress plaintiff, and compel it to discontinue its business, passed a resolution, which is set forth in full, and which in substance recited the notice given plaintiff of March 10th; that the time in which plaintiff should comply therewith would expire at 7 o'clock a. m. of March 15, 1899; that said plaintiff has not abated or removed said nuisances, etc., therefore, resolved "that the street commissioner be, and he is hereby, instructed to abate and remove said nuisances, commencing at 7 o'clock a. m., March 15, 1899, and that he employ sufficient assistance to accomplish that purpose." It is then averred that "thereupon said defendant, on the 15th day of March, A. D. 1899, wantonly and willfully intending and devising to oppress this plaintiff, and to compel it to discontinue entirely its business at the city of Healdsburg, forcibly and violently cut, uprooted, threw down, broke and so injured divers parts of the plant and property of the plaintiff as to prevent the plaintiff entirely from continuing its business aforesaid at Healdsburg." That "by reason of said acts" the plaintiff was obliged to wholly discontinue its business to its damage in the sum of $20,000. There is no allegation in the complaint that plaintiff ever had or now has the right to erect poles or wires in said city. The defendant demurred for insufficiency of facts, and also specially on the grounds of uncertainty, ambiguity, and unintelligibility. In its brief appellant makes the following statement: "The plaintiff was engaged in a lawful business at Healdsburg, mainly producing and supplying the city of Healdsburg and its residents with electric light and power. The business was not in itself a nuisance, and could only become so in the manner of conducting it. But for the purposes of this demurrer the allegations of paragraph 7 of the complaint are conclusive upon the defendant, and the only refuge remaining for the defendant is to plead that the acts complained of are ultra vires the municipal corporation. This in fact is what counsel for the defendant did in the court below, and it is for the correction of the error in so holding that this appeal is prosecuted." Appellant limits the discussion to the single question: Is a municipal corporation liable for the torts of its agents and servants whose acts are concededly ultra vires? We shall confine ourselves to this single question, and we shall also assume, as conceded, that the acts complained of were ultra vires. We take it, when counsel use this phrase, it is with knowledge of its import, i. e., that it denotes, in the present case, an act or acts of tort done on behalf of the corporation, not within the scope of the powers conferred upon it. It is charged that defendant wantonly, willfully, and with intent to oppress plaintiff, and to compel plaintiff to abandon its business, "forcibly and violently cut, uprooted, threw down, broke, and so injured divers parts of the plant and property of the plaintiff as to prevent the plaintiff entirely from continuing its business aforesaid." It does not appear by direct averment whether this was pursuant to said ordi The nances and orders set forth; nor does it appear that the alleged injuries were done by the street commissioner pursuant to the order of the defendant. On the contrary, it appears that the defendant itself did the alleged mischief, without averring other agency through whom it was accomplished. We are unable to discover any lawful authority for the destruction of plaintiff's property in the manner alleged. That it was ultra vires in the strictest sense of that phrase seems clear. Whatever may be the doctrine in other jurisdictions, it is settled law in this state that a municipality cannot be held liable for injuries to private property thus perpetrated. principle was applied in Wichmann v. City of Placerville, 147 Cal. 162, 81 Pac. 537, in a matter of contract obligation, where it was held that the ultra vires acts of a municipal corporation are absolutely void; and we believe there is no distinction in the application of the principle between such acts arising out of contract and in tort. In Sievers v. San Francisco, 115 Cal. 648, 47 Pac. 687, 56 Am. St. Rep. 153, the doctrine of respondeat superior was quite fully discussed, where the injury complained of was to private property, resulting from certain street grading. The court there said: "In the performance of its governmental or public functions, the corporation is either deemed a public agency, a mandatary of the state, as in Barnett v. Contra Costa County, 67 Cal. 77, 7 Pac. 177, and therefore not liable to be sued civilly for damages, or it is considered, in the performance of these functions, to be clothed with sovereignty, and therefore not liable in an action. Lloyd v. Mayor of New York, 5 N. Y. 369, 55 Am. Dec. 347. Where the injury results from the wrongful act or omission of an officer charged with a duty prescribed or limited by law, the officer is not treated as the servant or agent of the corporation in the performance of the duties enjoined, but is held to be the servant and agent of, and controlled by, the law, and for his acts the municipality will not be held liable." This case was referred to in Ukiah v. Ukiah Water & Imp. Co., 142 Cal. 173, 75 Pac. 773, 64 L. R. A. 231, 100 Am. St. Rep. 107, where it is stated to be the established rule in this state that a municipality is not liable for damages occasioned by the negligence of its officials or employés, citing, also, Huffman v. San Joaquin Co., 21 Cal. 426; Chope v. City of Eureka, 78 Cal. 588, 21 Pac. 364, 4 L. R. A. 325, 12 Am. St. Rep. 113. In Chope v. City of Eureka, it was held that, in the absence of a statutory provision imposing the liability, a municipal corporation is not liable for personal injuries to individuals occasioned through the neglect of the officers of the corporation to properly perform their duties. Mr. Dillon says: "If the act complained of lies wholly outside of the general or special powers of the corporation as conferred in its charter or by statute, the corporation can in no event be liable to an action for damages, whether it directly commanded the performance of the act, or whether it be done by its officers without its express command." 2 Dillon, Mun. Corp. 968. See Winbigler v. City of Los Angeles, 45 Cal. 36; also extended note in Goddard v. Inhabitants of Harpswell, 84 Me. 499, 24 Atl. 958, 30 Am. St. Rep. 373, 376. Plaintiff seems to have been careful to show that the acts complained of were outside of any general or special powers given defendant, and to frame its pleading upon the theory, contended for now, that, though ultra vires, defendant was liable for its alleged acts. We think plaintiff has misconceived the law as applied in this state. The judgment is affirmed. We concur: HART, J.; BURNETT, J. (5 Cal. A. 546) HINER v. HINER. (Civ. 316.) (Court of Appeal, Third District, California. May 16, 1907.) COURTS COURTS OF APPELLATE JURISDICTION -SUPREME COURT-EQUITY. An action for separate maintenance is an equitable action, and an appeal therein lies directly to the Supreme Court, under Const. art. 6, § 4, providing that the Supreme Court shall have appellate jurisdiction in all cases in equity, except such as arise in justice's court. Appeal from Superior Court, Sonoma County; Emmett Seawell, Judge. Action by Alice E. Hiner against J. F. Hiner for separate maintenance. From an order granting alimony, etc., defendant appeals. Case transferred to the Supreme Court. J. F. Thompson, for appellant. J. W. Oates, for respondent. CHIPMAN, P. J. Plaintiff is the wife of defendant, and brings the action for separate maintenance for herself and three children of the marriage. The complaint alleges that in October, 1902, plaintiff and defendant were residing together in the county of Chehalis, state of Washington; that in said month defendant abandoned and willfully deserted plaintiff, and has never returned to plaintiff or to their said residence, but still continues to abandon and desert plaintiff; that defendant came to California shortly after October, 1902, "and is now a bona fide resident of Sonoma county"; that "plaintiff ever since October, 1902, has been and is now a bona fide resident of said Chehalis county, state of Washington"; that defendant is possessed of considerable means, setting forth a description of property alleged to be owned by him; and that plaintiff, when so abandoned and deserted by defendant, was left with no means of income and with property "of but little value, and plaintiff now has no means of support." Plaintiff alleges that she is in need of $100 per month from October, 1902, thenceforth "for her sup port and for the support of her said minor children"; that "under the laws of the state of Washington the plaintiff has a cause of action against defendant for divorce." The prayer of the complaint is that it be decreed that plaintiff "has a cause for divorce against defendant; that $100 per month is a proper amount for the support of plaintiff and her said minor children, and has been ever since said desertion of plaintiff by defendant." Attorney's fees are also prayed for in the sum of $250, and $100 pending the trial of the action, and for costs and expenses of suit, and "that the same may be made a charge upon said land and premises," and for such other relief as may be meet and proper. Plaintiff gave notice to defendant that at a time stated she would move the court for an order requiring defendant to pay plaintiff $100 per month, commencing at the filing of the complaint; also for $400 attorney's fees, and $300 for costs and expenses; that said motion would be heard upon the pleadings and upon certain affidavits, copies of which were served with the notice. The matter came on to be heard upon said papers and upon countera ffidavits filed by defendant, and upon the hearing the court made an order that defendant forthwith pay $210 as and for alimony, $50 costs of suit, and $100 as attorney's fees, and directed that execution issue to enforce collection of the same. The appeal is from this order, and is taken directly to this court. Section 137 of the Civil Code provides for the payment of alimony "where an action for divorce is pending." As amended in 1905 (St. 1905, p. 205, c. 205), it also provides further: "When the wife has any cause of action for a divorce as provided in section ninety-two of this Code, she may, without applying for a divorce, maintain in the superior court an action against him for permanent support and maintenance of herself or of herself and children. During the pendency of such action the court may, in its discretion, require the husband to pay as alimony any money necessary for the prosecution of the action and for support and maintenance, and execution may issue therefor in the discretion of the court. The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court." It was held, in Sharon v. Sharon, 67 Cal. 185, 7 Pac. 456, 635, 8 Pac. 709, that divorce is an action in equity within the meaning of the Constitution, conferring appellate jurisdiction upon the Supreme Court; and in Benton v. Benton, 122 Cal. 395, 55 Pac. 152, it was held that in actions for divorce, with application for alimony or allowance for support pendente lite, the cause of action is divorce, and the support of the wife pending suit is an incident. Hardy v. Hardy, 97 Cal. 125, 31 Pac. 906, |