when offered, it must be held that the right (improper testimony, hence these views by me, to invoke the statute of frauds was waived and with these views I perceive no conflict in by the appellant, and it cannot now be in- anything said in the case of Harrison v. Mcroked in this court as a reason why the judg- Cormick, 89 Cal. 327, 329, 26 Pac. 830, 23 ment should be reversed or a new trial grant-Am. St. Rep. 469, cited by appellant. In that ed. The defense of the statute of frauds can case it was held that— be waived, and that it was waived by the plaintiff in failing to object at the time to the parol evidence when offered, we think there can be no doubt." Nunez v. Morgan, 77 Cal. 427, at page 433, 19 Pac. 755. The finding of the court that the plaintiff for an increased rental agreed that defendant might have until September 30, 1918, to remove the property in dispute, being supported by the evidence, is decisive of the case, and renders a discussion of other points unnecessary. The judgment is affirmed. I concur: BURNETT, J. "Where a contract for the sale of merchan dise is in writing, and nothing in the written contract indicates that a sample was used or referred to, parol evidence is inadmissible to show a sale by sample." but it does not fit this case as to the point The rule so stated is unquestionably correct, here considered. (43 Cal. App. 490) (Civ. 2922.) STONE v. McWILLIAMS. (District Court of Appeal, First District, Division 1, California. Oct. 9, 1919.) 139-DISCRETION OF COURT IN VACATING DEFAULTS. Applications to be relieved from an order or judgment by default are addressed to the sound legal discretion of the trial court, and its action upon such applications will not be reversed on appeal unless it clearly appears that the court abused its discretion. 2. JUDGMENT 139 VACATION OF DEFAULT HELD NO ABUSE OF DISCRETION. HART, J. I concur in the judgment and 1. APPEAL AND ERROR ~957(1)—Judgment also in the proposition, stated by the acting presiding justice, that the point made by appellant that the parol testimony disclosing the purpose for which the new or additional lease was given to the defendant is incompetent, and therefore was inadmissible, is not reviewable because it was not objected to and hence the objection must be deemed to have been waived. But I do not think that that testimony was incompetent. The terms of the additional lease were these, to wit: That the defendant might use and occupy the room known as the "Gem Theater" situated in the Herald Building, in the town of Colusa, for the term of one month, beginning on the 1st day of September, 1918, and ending September 30, 1918, for the sum or rental of $60 for said month. These terms could not, of course, be changed by parol. The defendant could not have proved by parol, except under a plea of fraud or mistake, that the lease was for a longer term than one month or that the rental was less than that specified in the writing. But the testimony referred to was not offered for that purpose. It was not offered to vary the contract as it was written in any respect or to substitute new terms for those expressed in the writing. Its sole purpose was to show the reason why the lessee asked for and secured an extension of the lease for one month. The obvious purpose of the testimony was to show that the plaintiff recognized the defendant's ownership of the furniture and fixtures and his right to remove them upon the expiration of the term and that his failure to remove the property within the original term or at the expiration thereof was because he did not have sufficient time within which to do so. I do not understand the main opinion to hold that the testimony was inadmissible, but the conclusion therein upon the question of its admissibility is upon the assumption that it was Where defendant, who was over 70 years of age, totally blind, and illiterate, defaulted in an action by plaintiff, who claimed that he had broken a contract whereby plaintiff was to care for him during his declining years, etc., held that, under the circumstances, the vacation of the default could not be deemed abuse of trial court's discretion, notwithstanding plaintiff's showing that shortly before commencement of the action defendant had withdrawn his money from a bank and transferred his real estate with the apparent intention of protecting himself against her claim. Appeal from Superior Court, Fresno County; M. F. McCormick, Judge. Action by Callie Stone against George W. McWilliams. From an order setting aside a thereon in her favor, plaintiff appeals. Afand vacating judgment entered default firmed. Stanley Moffatt, of Fresno, for appellant. Burns & Watkins, of Fresno, and E. S. Reichard, for respondent. KERRIGAN, J. This is an appeal from an order setting aside a default and vacating the judgment entered thereon in favor of plaintiff. The default was taken in an action commenced by the plaintiff against the defendant to recover the sum of $1,000 for breach of contract. The complaint alleged that the (185 P.) parties entered into an agreement by the circumstance would warrant us in holding terms of which the plaintiff was to make her that the court abused its discretion in sethome with the defendant, keep house for ting aside the defendant's default. It is inhim, and give him such care and attention | variably held that applications to be relievnecessary for the comfort of a man of his ed from an order or judgment by default are age and condition during the remainder of addressed to the sound legal discretion of his life, in return for which she was to re- the trial court, and that its action upon such ceive board and lodging for herself and two applications will not be reversed on appeal minor children, with the further advantage unless it clearly appears that the court abusthat the defendant would by last will and ed its discretion. Nicoll v. Weldon, 130 Cal. testament leave to plaintiff whatever prop- 667, 63 Pac. 63. In the case of Berri v. erty he might own at the time of his death. Rogero, 168 Cal. 736, 145 Pac. 95, which, It further appears that the plaintiff entered upon the facts, was less favorable to the upon the performance of this agreement, and party appealing from the order vacating the remained at the home of defendant for about default than the present case, the court one year, when, after a quarrel with him, she said: left, and shortly thereafter commenced this "The law does not favor snap judgments. The action. The summons and complaint were policy of the law is to have every litigated case served upon defendant by a deputy sheriff, tried upon its merits, and it looks with disand, defendant making no answer thereto, favor upon a party who, regardless of the merplaintiff caused his default to be entered, up-its of his case, attempts to take advantage of on which the court rendered judgment in the mistake, surprise, inadvertence, or neglect of plaintiff's favor for $1,000, the amount de- his adversary." manded. Within a reasonable time under Here the defendant made a seasonable apthe attending circumstances defendant mov-plication to be relieved from his default and ed the court to set aside his default and to vacate the judgment upon the ground of his mistake, inadvertence, and excusable neglect. The court granted the motion, imposing terms under which the defendant was required to pay into court for the use of plaintiff the sum of $50. [1, 2] From the record it appears that the defendant is over 70 years of age, totally blind, illiterate, and unable to write his name. Upon the motion to set aside the default he made and filed an affidavit which stated, among other matters, that at the time the summons and complaint were served upon him he was wholly unfamiliar with court proceedings, and neglected to make seasonable answer to the complaint by reason of what he understood the deputy sheriff to advise him or inform him he might safely do at the time that officer made such serv ice; his advice or information being to the filed an affidavit of merits showing a good defense. His age, blindness, and illiteracy might well have appealed to the court to exercise its discretion in his favor even more liberally than in ordinary cases. It does not appear that the plaintiff has suffered any prejudice, or that any injustice will result to her from a trial of the case upon the merits. Under these circumstances we are not inclined to hold that the court abused its discretion in granting defendant's application. The order is affirmed. We concur: WASTE, P. J.; RICHARDS, J. (43 Cal. App. 502) BONNARJEE et ux. v. PIKE et ux. (Civ. 3020.) (District Court of Appeal, First District, Division 1, California. Oct. 10, 1919.) BOTH PARTIES. In an action for damages for false represensentations were made by the broker negotiating tations as to property exchanged, which reprethe transaction, evidence held to show that the broker was the agent of both plaintiffs and defendants. 2. FRAUD 58(1)—EVIDENCE OF VALUE OF effect that under the circumstances of the case it would be needless for the defendant 1. BROKERS 8(3)—EVIDENCE OF AGENCY FOR to do anything, either in the way of writing a letter to the plaintiff or her attorney or otherwise, and that no trouble would ensue from such inactivity. On the other hand, it is stated in the counter affidavit filed by the plaintiff in opposition to the motion that shortly before the commencement of the action the defendant withdrew his money from a bank and transferred his real estate with the intention apparently of protecting himself from any claim plaintiff might make or prosecute, but the steps he took in this be half are the subject-matter of another action instituted by plaintiff; and, whatever his object may have been, he seems to have believed that he was acting within his legal rights. In any event, we do not think this REAL ESTATE EXCHANGED. In an action for damages resulting from fraudulent representations in an exchange of real estate, evidence as to value of properties held sufficient to support the court's finding in plaintiff's favor as to damages. 3. EVIDENCE 113(8, 11)-RENTAL AND SALE PRICE TO DETERMINE VALUE. In an action for damages resulting from an exchange of properties, in which there were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes false representations as to value, evidence of a bona fide rent paid for the use of the property is generally admissible, as is also the price actually paid at bona fide sale of the property whose value is in dispute, made about the time the transaction arose. 4. FRAUD 11(2)—REPRESENTATION OF VALUE AS MATTER OF FACT. A representation as to value of property is often a representation of fact and actionable, if false, especially where the purchaser to whom the representation is made is so situated as to have no means of investigation, and therefore relies on the statements of value made by the vendor or his agent. 5. PRINCIPAL AND AGENT REPRESENTATIONS. When a false representation of value is made by vendor's agent in the transaction of his principal's business, the latter accepting the benefit of the transaction, is liable in damages for the agent's wrongful act (Civ. Code, § 2330). Appeal from Superior Court, Los Angeles County; Leslie R. Hewitt, Judge. Action by Basanta C. Bonnarjee and wife against George W. Pike and wife. Judgment for plaintiffs, and defendants appeal. Af firmed. which the plaintiff sometimes attended. Stating his desire to Wendell, the latter immediately informed him: "I know a person over there [Southern California], and he wanted me to exchange his property, and he wants to come here, and we all want him to come. He is a good man, and belongs to our church. He is a Sunday school superintendent, a sanctified man, and I will write him and see if he has the property still left, and will exchange that with you." Wendell accordingly wrote to the defendants, with whom he had a previous acquaintanceship, having visited them at their home 171(4)—RATIFI-in Los Angeles. They also were members of a church of the same or an allied denomination, and Wendell addressed them as "Dear Brother and Sister," and in signing his letters seldom omitted an allusion to the founder of the Christian religion. This, also, was the practice of the defendant George W. Pike, who, in his correspondence both with Wendell and the plaintiff, also invariably preceded his signature with the words "Your brother in Christ." In his first letter to Pike, Wendell gave full particulars of the plaintiffs' property, including the price, which was put at $5,500, and stated that they would trade with the defendants for their cottage, "if the price was right." The correspondence which ensued resulted in an exchange of properties; the plaintiffs transferring to the defendants their said house at a valuation of $5,500, subject to a mortgage of $1,500, and receiving from the defendants their cottage at a valuation of $4,500, subject to a mortgage of $1,300, and a vacant lot, situated on a hillside, over a mile from transportation facilities, barren of street improvements of any kind, and the taxes on which were $5 per annum, at a valuation of $2,500, and subject to a mortgage of $1,000; the agreement of exchange also provided that the plaintiffs should pay to Wendell, not only a commission on their own ac count, but also one agreed to be due to him from the defendants upon this transaction. Henry K. Norton and Wilbur Bassett, both of Los Angeles, for appellants. John F. Poole and Valentine & Newby, all of Los Angeles, for respondents. KERRIGAN, J. This action was brought by the plaintiffs, who are husband and wife, to recover from the defendants, also husband and wife, the sum of $3,000 as damages resulting from an exchange of properties by the respective parties, brought about by the aid of false representations on the part of the agent who negotiated the transaction. Judgment went for plaintiffs in the sum demanded, and the defendants appeal. The appellants make several contentions in support of their appeal, among them being There was testimony in the case from which that the evidence is insufficient to show that the court was justified in finding that the the agent in the transaction was in fact the value of the plaintiffs' property was the figure defendants' agent; that it is also insufficient at which it was put in the transaction. This to show the values of the respective properties was the price paid for it by the plaintiffs, and upon the difference in which the court based it was rented for $40 per month, one of the the amount of damages allowed; and, further-conditions of the lease being that the tenant more, that the appellants are not responsible should make all repairs, and, according to the for the fraudulent representations of the agent, even conceding that he acted for them. The facts are substantially these: Basanta C. Bonnarjee (hereinafter referred to as the plaintiff), a native of India and a convert to the Christian religion, was living with his wife in Chicago, and there owned a brick building. Desiring by reason of his wife's illness to go to Los Angeles and there reside, he sought the services of one Wendell, a real estate broker, and a member of a church testimony of the plaintiff, could have been rented for more. He testified that he could easily have rented it for $50 per month, but, having a good tenant, whom he described as a prompt payer, he accepted the lower rent. As to the defendants' property, it was testified to that the cottage was worth from $2,000 to $2,500 only, and was subject to a mortgage of $1,300, which would make their equity therein of the value of from $700 to $1,200; that the vacant lot was worth, one witness testified, $400, (185 P.) and another, $500, Burdened as it was with a mortgage of $1,000. secured directly by the defendants from an old lady (whether a member of their church does not appear), the equity therein would have no value. During the negotiations the plaintiff expressed grave concern to Wendell that the defendants' property was not of the value at which the trade was sought to be made. Wendell quieted him by saying: * "Don't you worry about that. I told you that Brother Pike is a good man, and he will never do anything at all that is wrong, and now here is an opportunity for you, and you are getting a bargain. On the price which you are getting, I tell you it is a bargain. I was there, and I have seen the property; both of these properties I have seen, and I can assure you they are worth just what Brother Pike wants for it, and he would not misrepresent at all, so you can take his word for it, and when you go there you will find that you are not at all anyway loser, but you get a bargain." The plaintiff's wife was equally dubious about the value of the defendants' property, but her fears were also overcome by similar assurances from Wendell. He said: "Sister Bonnarjee, don't worry anything at all. I am doing the best I can for you, and when you go there you will see that you have made a bargain. Brother Pike is a good man; he belongs to our church, so you can take his word for it, and you will see when you go that it will be all right. You are getting a bargain." [1] We think the trial court was fully justified in holding that Wendell was the agent both of the plaintiffs and the defendants. Bearing on the question of his employment is the direction contained in one of Pike's letters to Wendell: the transaction arose, may be proved as an aid in determining its value." Id: p. 447. [4, 5] That a representation as to the value of property is often a representation of fact, and actionable, if false, is well established, especially where the vendee to whom the representation is made is so situated as to have no means of investigating the question for himself, and therefore relies on the statements of value made by the vendor or his agent. Crandall v. Parks, 152 Cal. 772, 93 Pac. 1018; Phelps v. Grady, 168 Cal. 73, 77, 141 Pac. 926. It is equally well settled that, when such a representation is made by an agent in the transaction of his principal's business, the latter, accepting the benefit of the transaction, is liable in damages for the agent's wrongful act. Civ. Code, § 2330; Riser v. Walton, 78 Cal. 490, 21 Pac. 362. We conclude from the foregoing that the court's findings are sufficiently supported by the evidence, and that the judgment entered in the plaintiffs' favor was the correct legal conclusion therefrom. The judgment is affirmed. We concur: WASTE, P. J.; RICHARDS, J. GENTLE v. WARREN et al. (No. 3020.) (District Court of Appeal, Second District, Division 2, California. Nov. 3, 1919.) Appeal from Superior Court, Los Angeles County; Fred H. Taft, Judge. Action by John R. Gentle against T. C. Warren and others. Judgment for defendants, and Affirmed. "If I can trade in both places, I would say plaintiff appeals. you can see what you can do." Clearly in seeing what he could do he was acting for defendants. In addition to the fact that the defendants recognized their liability to pay Wendell a commission upon the transaction (for which, of course, they were not liable, unless he was their agent), the evidence also shows that by their direction he received and receipted for money due them incidentally from this same transaction, gave to the plaintiff instructions as to the form of the deed to be executed by him and his wife, recorded it, and during the course of the same negotiation was intrusted by defendants with a third piece of property for disposal. [2, 3] The evidence as to value sufficiently supported the court's finding thereon. bona fide rent paid for the use of property may generally be shown as an aid in estab lishing its value." 13 Ency. of Evidence, 435. "In several jurisdictions the price actually paid at a bona fide sale of the property the value of which is in dispute, about the time 185 P.-31 "A C. A. Stice, of Los Angeles, for appellant. THOMAS, J. This is an action brought by the plaintiff against defendants for the purpose of setting aside a certain deed made by one Anna Gentle, plaintiff's deceased wife, to defendants, on the ground that it was made as the result of fraud and undue influence exerted upon the grantor, and because her mind was in a weakened condition-which defendants denied. The court found in favor of defendants on all the issues, and entered judgment accordingly. From the judgment so entered, plaintiff appeals. For a reversal of the judgment plaintiff attacks one of the findings as not supported by the evidence. That finding, so far as the same it is not true that her mind was weakened and is objectionable to plaintiff, is as follows: "That affected, or weakened or affected, on the 9th day of March, 1916; but the court finds that on the said 9th day of March, 1916, the mind of Anna J. Gentle was in a sound, strong, and normal condition." No evidence has been called to our attention which shows that there is any conflict, so far as the condition of deceased's mind is concerned. This is not only a case where there is evidence to support the finding, but the plaintiff's own evidence, as well as defendants', supports it, and for this reason we are unable to agree with the appellant's contention. No other point is urged. Judgment affirmed. We concur: SLOANE, J. the court upon the admission and rejection of evidence, and are fully convinced that the defendant, after a fair and impartial trial, was justly convicted of the crime of statutory rape with which he was charged. No sufficiently prejudicial errors appear in the record to warrant any interference with the action of the lower court. The judgment is amended by striking out the words "for the term of not more than fifty (50) years, the exact term to be determined as FINLAYSON, P. J.; provided by law," and, as so amended, the judgment and the order are affirmed. Appeal from Superior Court, Stanislaus Coun- (Criminal Court of Appeals of Oklahoma. Jan. ty; L. W. Fulkerth, Judge. Jesse Martinez was convicted of rape, and he appeals. Judgment amended, and judgment and order affirmed. A. J. Carlson, of Modesto, for appellant. 26, 1920.) Petition for writ of habeas corpus to be admitted to bail. Bail denied. Charles E. McPherren, of Durant, for petitioner. The Attorney General and W. C. Hall, Asst. Atty. Gen., for respondent. PER CURIAM. Petitioner, Frank Sawyers, applies for a writ of habeas corpus to be ad fully restrained of his liberty by Dave Wright, sheriff of Bryan county, Okl., and detained in the county jail of said county to appear in the district court of said county to answer for the crime of murder in having killed one Lorene Bleeker in said Bryan county; that a complaint ELLISON, Presiding Judge pro tem. Defendant was informed against by the district attorney of Stanislaus county, state of Cali-mitted to bail, and states that he is unlawfornia, in which he was charged "with having, on or about the 20th day of August, 1918, in the county of Stanislaus, state of California, and prior to the filing of this information, willfully, unlawfully, and feloniously accomplished an act of sexual intercourse with and upon one Catherine Medina, then and there a female un-charging petitioner with the said offense has der the age of 18 years, to wit, of the age of 12 years, and not then and there the wife of the said 'Jessie' Martinez." been heretofore filed before W. S. Archibald, justice of the peace for Durant township, Bryan county, Okl., and an examining trial had therein; that said justice held the petitioner without bail to await the action of the district court of said Bryan county on said charge; that thereafter petitioner presented to the district judge of Bryan county his petition for habeas corpus herein to be admitted to bail, and upon a hearing in said court upon the record of the evidence adduced at the preliminary examination, the said district judge refused to admit petitioner to bail. Defendant, on the 1st day of July, 1919, secured from this court an order extending his time to and including the 20th day of July, 1919, within which to file his opening brief on appeal from the judgment of conviction; the Attorney General, by stipulation, having previously agreed thereto. No brief was filed by either party, nor was any appearance made by the defendant at the argument on the day set therefor in this court, nor was any further stipulation or order made extending defendant's Further, petitioner alleges that he is not guilty time to file his brief. Upon motion by the At- of the crime of murdering said Lorene Bleektorney General the cause was accordingly sub-er, in that he acted in his own necessary selfImitted on the record. In the case of People v. Young, 176 Pac. 696, under a similar set of circumstances, the court held that it must be assumed that the appeal has been abandoned and the judgment should be affirmed for want of prosecution. See, also, People v. Wong Bow, 175 Pac. 802, People v. Schiaffino, 181 Pac. 813, and People v. Mediani, 181 Pac. 673. Notwithstanding the foregoing, we have carefully perused the pleadings, the evidence and the instructions, together with the rulings of defense in firing the shots that resulted in the death of said Bleeker, as is shown by the transcript of the evidence taken at the examining trial, and by the affidavit of petitioner attached to and made a part of this petition. For the reasons stated, petitioner contends that he is wrongfully confined in the said county jail of Bryan county, and should be admitted to bail in a reasonable amount to await the action of the district court of said county on said charge. This cause came on to be heard before the court on January 23, 1920, at which time peti |