and acquiescence of the plaintiff, in allowing the defendant to proceed with its improvements, was sufficient to defeat his right to an injunction. But we see nothing in the evidence to support this position.

It is further insisted that the rights of the appellant could not be forfeited by a proceeding of this kind. But this is not an attempt to forfeit any right the appellant bad, but to show that it never had any rights. There are other objections to the findings that need not be particularly noticed. There is no error in the record. Judgment affirmed.

We concur: DEHAVEN, J.; PATERSON, J. (87 Cal. 209)

FORD et al. v. CUNNINGHAM et al. (No. 12,044.)

Supreme Court of California. Dec. 20, 1890.) CONTENTS OF LETTER-SECONDARY EVIDENCEBOOKS OF ACCOUNT.

1. One of the plaintiffs having stated that he had no personal knowledge that certain communications addressed to defendants were mailed except that copies thereof appeared in plaintiffs' copy-book, and that it was a general custom of their firm to place letters in a box in the store from which they were taken to the post-office, there was no foundation laid for the introduction of secondary evidence as to the contents.

2. If secondary evidence were admissible, the press copies would be the best evidence.

3. One of the defendants having identified their ledger showing their account with plaintiffs, and having stated that it showed the true state of the account between them, and that the items had been entered by him at the time of the several transactions, and it being admitted by plaintiffs that the entries were original entries, it was error to exclude it though it did not contain the item sued for by plaintiffs.

Department 1. Appeal from superior court, Santa Cruz county; F. J. MCCANN, Judge.

J. M. Lesser, Spalsbury & Burke, and Garber, Boalt & Bishop, for appellants. A. S. Kittridge, for respondents.

PER CURIAM. The only question litigated in the court below was whether the barley was sold by the plaintiffs to the defendant Cunningham, or to the firm of Cunningham & Co., of which he was a member. The appellants contend that the evidence is insufficient to support the findings, but we think there was sufficient evidence on behalf of the defendants to create a substantial conflict, and under the well-established rule we should not interfere with the findings of fact.

The plaintiffs, to establish their case against the copartnership, relied mainly on documentary evidence, some of which they claimed was in possession of the defendants, who were askel at the trial to produce the same. Mr. Morey, one of the plaintiffs, was permitted by the court to state the contents of certain bills and letters which he claimed had been addressed and sent to Cunningham & Co. Objection was made by the defendants to the introduction of oral testimony as to the contents of the bills and letters, and the objection was overruled. We think the court erred in its ruling. The witness stated that he had no personal knowledge

that the communications addressed to Cunningham & Co. were mailed, except that copies thereof appeared in the plaintiffs' copy-book, and that it was a general custom of his firm tỏ place letters in a box in the store, from which they were taken to the post-office. No foundation, therefore, was laid for the introduction of the evidence. Assuming that secondary evidence could under such circumstances be introduced, the press copies were the best evidence next to the originals themselves. The ruling was on a material matter, because the defendants testified that they never received the communications referred to. Brailsford v. Williams, 74 Amer. Dec. 562.

Mr. Middleton, one of the defendants, was called as a witness, and identified the ledger of the copartnership, showing the account of Ford & Co. with Cunningham & Co. from September 1, 1884, to the date of trial. It was admitted by the plaintiffs that the entries therein were original entries, but they objected to the introduetion of the same as evidence on the ground that it was irrelevant, immateria!, and incompetent. The objection was sustained by the court, to which ruling the defendants excepted. There was no item of barley in the account offered. The ruling, we think, was error. The witness had stated that the ledger showed the true state of account between plaintiffs and defendants, and that the items had been entered by him at the time of the sevLaneral transactions therein mentioned.

dis v. Turner, 14 Cal. 573. Judgment and order reversed, and cause remanded for a new trial.

KAHN V. BOARD OF SUPERVISORS OF THE CITY AND COUNTY OF SAN FRANCISCO. (No. 11,765.)

(Supreme Court of California. Dec. 22, 1890.) MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS -MANDAMUS.

1. Act Cal. April 1, 1872, (St. 1871-72, p. 911,) passed to establish a street in San Francisco, provided (section 5) that, on petition to the mayor by the owners of a majority in frontage of the property described in such act, "as said owners are or shall be named in the last preceding annual assessment roll for the state, city, and county taxes," for the opening of said street, the board constituted by the act to carry it into effect should proceed. Held, that the signatures to the peti tion of persons other than those to whom the property was assessed on the last preceding assessment roll could not be counted in order c make up the owners of a majority of the frontage.

2. Nor could the signatures of executors, administrators, and agents be counted, in the absence of evidence of their authority to sign the petition.

3. Nor could the signature of a homestead and railroad corporation, made by its president and secretary, be counted, in the absence of evidence that such officers were authorized to affix the signature, or that that duty appertained to their offices.

4. On application, by a holder of bonds issued for improvements made under the act, for mandamus to compel the city to levy a tax for the payment of the bonds, the facts that, on presentation of the petition to the mayor, he certified that it was signed by the requisite property owners, and that the county court affirmed the report of the board of the proceedings taken by it under

the petition, do not estop the city to deny the sufficiency of the petition.

Affirming 21 Pac. Rep. 849.

In bank. Appeal from superior court, city and county of San Francisco; T. K. WILSON, Judge.

D. M. Delmas, for appellant. George Flournoy, Jr., City and County Atty., and Philip A. Galpin, for respondent.

PER CURIAM. The questions arising here. in (which is a motion for a new trial by Kahn) have been fully considered and passed on in this case, the opinion in which will be found in 79 Cal. 392, 21 Pac. Rep. 849. Conceding that the signature of the North San Francisco Homestead & Railroad Association, by its president and secretary, was authorized by the proper corporate authority, the petition would still fail of having the majority required. We see no reason to disturb the rulings formerly made in this case. The motion for a new trial is denied.

13 Cal. Unrep. 351)

WINDHAUS V. Boorz et al. (No. 12,991.)1 (Supreme Court of California. Dec. 30, 1890.) FRAUDULENT CONVEYANCES-GIFTS-WHO MAY SET ASIDE.

1. The transfer of a debt by a creditor to a third person, to whom the debtor afterwards makes a part payment, and executes a note for the balance, constitutes the transferee the "successor in interest" of the creditor, within the meaning of Civil Code Cal. § 3439, which renders all conveyances by a debtor, made with the intent of defrauding any creditor, void as against all creditors and their "successors in interest."

2. A gift of land by a father to his son is not void as against creditors of the father, unless the latter had not, at the time of the gift, sufficient property subject to execution to satisfy his debts,

3. The return of an execution nulla bona five years after the making of the gift is not sufficient to establish the father's insolvency when the gift was made.

Department 1. Appeal from superior court, city and county of San Francisco; WALTER H. LEVY, Judge.

F. J. Castlehun, for appellant. Lowenthal, for respondents.

H. H.

WORKS, J. This was a suit by a judg ment creditor to have declared fraudulent and void certain transfers of real property by the defendant Adam Bootz to his wife and children. The trial court gave judg ment for the defendants, and the plaintiff appeals.

The court found that there was no fraudulent intent, and that the grantor was solvent and able to pay his debts at the time the deeds were made. Whether this finding was sustained by the evidence or not is the only question necessary to examine.

It was admitted at the trial that the deeds were deeds of gift; and the evidence shows, without conflict, that at the time of their execution the donor was indebted to one Severin in the sum of $1,000. Subsequently Severin became in need of money, and borrowed $1,000 from the plaintiff, and it was agreed between the parties that the indebtedness of the donor to Severin should be transferred to the plaintiff, and that due from Severin to the plaintiff Rehearing granted.

should be released. This was done, but, instead of the old note being transferred to the plaintiff, the donor made a pay. ment to her of $200, and gave a new note for the balance, viz., $800. The form of the indebtedness was changed, and the amount was reduced, but, in substance, it was a continuation of the old debt; and, in our opinion, the plaintiff was “the successor in interest" of an existing creditor within the meaning of section 3439 of the Civil Code. The question of intent was one of fact, (Civil Code, §§ 1227, 3442,) and the burden of proving the fraudulent intent rested upon the plaintiff. The right of a creditor to go upon property conveyed by his debtor to a third party rests upon two foundations, viz., that the conveyance was fraudulent, and that the grantor had not other property at the time suit is brought, subject to execution, out of which his debt can be made. Proof that the debtor made the conveyance without consideration, that he was then indebted, and that he had not other property at the time of the conveyance, subject to execution, to satisfy such indebtedness, would be sufficient prima facie to establish the fact that the conveyance was fraudulent as against creditors. If the debtor had other property at the time of the conveyance, sufficient to satisfy his debts, the fraud would not be made out unless there was other evidence. If the debtor has other property at the time suit is brought, sufficient to satisfy his debts, his creditors are not injured, no matter what the original intention in making the conveyance may have been; and the creditor, not being injured, has no cause of action, and no right to subject property in the hands of a third It party to the payment of his debt. would seem to be unnecessary to cite authorities to sustain so plain a proposition, but we refer to Albertoli v. Branham, 80 Cal. 632, 22 Pac. Rep. 404, in which this court said: "Where a creditor attacks a transfer of property made by his debtor on the ground that such transfer was made to defraud, hinder, or delay creditors, facts must be alleged showing that the conveyance was made in such manner and under such circumstances as to have that effect. Therefore, it must appear that, at the time the conveyance was made, the debtor had not other property subject to execution out of which his debts could be satisfied. Evans v. Hamilton, 56 Ind. 34; Deutsch v. Korsmeier, 59 Ind. 373; Pfeifer v. Snyder, 72 Ind. 78. This allegation is necessary to show that the conveyance was in fact fraudulent as against the creditors. If the debtor has other property, subject to execution, sufficient to satisfy his indebtedness, the conveyance cannot amount to a fraud on his creditors; and, where the attempt is made to set aside a conveyance on such grounds, it must appear from the complaint that, at the time the action is commenced, the debtor had not other property sufficient to satisfy his debts. Bruker v. Kelsey, 72 Ind. 51; Sherman v. Hogland, 54 Ind. 578. This is for the reason that the conveyance, although made for the purpose of defrauding creditors, is valid as between the parties, and cannot be set aside, un.

less it appears to be necessary for the protection of the creditor, and no such necessity exists if, at the time he commences his action, there is other property of the debtor out of which his debt can be made."

The complaint in the case at bar contained these necessary allegations, and was sufficient. But there was no evidence even tending to show that, at the time the conveyances were made, the grantor was not possessed of other property amply sufficient to satisfy his debts. The declarations of the grantor, relied upon by the appellant as establishing the fact, do not relate to the time of the conveyance. An execution was issued and returned nulla bona, but this was several years after the conveyances were made; and, while this was sufficient prima facie to prove his insolvency at that time, it could not be held to establish the fact that he had no property nearly five years before. Judgment and order affirmed.

We concur: DEHAVEN, J.; PATERSON, J.

(86 Cal. 483; 3 Cal. Unrep. 350)

BARKLY V. COPELAND. (No. 13,520.) (Supreme Court of California. Dec. 26, 1890.) SLANDER - EVIDENCE OF DEFENDANT'S WEALTHDECLARATION OF CO-CONSPIRATOR.

In an action for slander in charging plaintiff with associating with another in a theft of certain cattle, declarations made by such other after the alleged transaction was completed are inadmissible to show that plaintiff was associated with him. Reversing ante, 1.

On rehearing. For former reports, see ante, 1, and 15 Pac. Rep. 307.

Clay W. Taylor, Jackson Hatch, and A. M. McCoy, for appellant. Chipman & Garter, John F. Ellison, and L. V. Hitchcock, for respondent.

PER CURIAM. Respondent's petition for a rehearing is denied. A re-examination of the record has not only confirmed us in the opinion that our decision was correct as to the ground upon which the judgment and order appealed from were reversed, but has satisfied us that we erred in sustaining the ruling of the superior court last noticed in the opinion of Commissioner FOOTE. Mrs. Mandeville's testimony, in regard to statements of Speegle, to the effect that plaintiff was his confederate in the proposed larceny of Polk's cattle, was clearly incompetent as hearsay, and not within the rule of People v. Collins, 64 Cal. 295. The decision in that case was merely that, after competent evidence of a conspiracy to commit a crime, the declaration of one conspirator accompanying an act done in furtherance of the common design, while the conspiracy is rife, is competent evidence against his confederate. This is no doubt correct, but it is not the law that a conspiracy between A. and B. can be proved as to either by the declarations of the other, as was allowed in this case, and our decision sustaining the ruling of the superior court on this point should not become the law of this case, or a precedent for others.

(87 Cal. 200)

In re BABY'S ESTATE. (No. 18,092.) (Supreme Court of California. Dec. 20, 1890.)

APPEAL SATISFACTION Of Judgment. Where one has taken payment in full satisfaction of a judgment, he cannot thereafter appeal from the judgment.

Department 1. Appeal from superior court, city and county of San Francisco; J. V. COFFEY, Judge.

Galpin & Zeigler, for appellants. Pillsbury & Blanding and Page & Eells, for respondents.

PER CURIAM. The respondents have moved to dismiss the appeal herein on two grounds, viz.: (1) The judgment was satisfied by the appellants before the appeal was taken. (2) Notice of appeal was not served on Gibbs, one of the distributees. The decree of distribution was entered March 24, 1890, and the notice of appeal was served May 12, 1890. On the 11th day of April, 1890, there were filed in the court below two receipts, signed by the appellants, in which they respectively acknowledged that they had received from the administrator certain sums of money and personal property in full of the distributive shares of the said estate allotted to them in and by the decree of distribution therein entered March 14, 1890. When a judgment has been satisfied, it has passed beyond review, for the satisfaction thereof is the last act and end of the proceeding. Morton v. Superior Court, 65 Cal. 496, 4 Pac. Rep. 489; People v. Burns, 78 Cal. 645, 21 Pac. Rep. 540. "Payment produces a permanent and irrevocable discharge, after which the judgment cannot be restored by any subsequent agreement, nor kept on foot to cover new and distinct engagements." Freem. Judgm. § 466; Moore v. Floyd, 4 Or. 260; Cassell v. Fagin, 11 Mo. 208. We are unable to say from the record that the rights of Gibbs would not be affected by a reversal of the decree, and, in view of what has been said upon the first ground of the motion, it is unnecessary for us to pass upon the question whether it was necessary that he should be served with a notice of appeal. The motion to dismiss is granted.

(87 Cal. 221)

SCOTT V. GLENN. (No. 13,973.) (Supreme Court of California. Dec. 20, 1890.) VENDOR AND VENDEE-ACTION TO RECOVER PRICE PAID.

Plaintiff sued to recover $600, had and received for his benefit. It appeared that the money was paid by himself and others to defendant and another by virtue of the following paper: "Received of * $600, one third of purchase price of lots, * leaving a balance due on said purchase, which by the terms of this sale is to be paid in two equal payments. If paid as above stated," the vendees "will be entitled to a deed of the above-described lots, and otherwise this agreement becomes void, and all payments made hereon shall be forfeited." Defendant signed his name and that of his covendor, but the latter afterwards ratified it. The vendors had good title and tendered a deed. Defendant's co-vendor assigned his right to defendant, and the co-vendees, their rights to plaintiff. Held, that there was no right of recovery.

Department 2. Appeal from superior court, Fresno county; J. B. CAMPBELL, Judge.

Meux & Edwards, (Thompson & King, of counsel,) for appellant. T. P. Ryan, for respondent.

MCFARLAND, J. This is an appeal by defendant from a judgment against him for $600, and from an order denying a new trial. The complaint merely avers that on April 4, 1888, defendant was indebted to plaintiff and certain other named persons in the sum of $600, for money had and received for the use and benefit of said persons; that the others assigned said indebtedness to plaintiff; and that no part of the same has been paid. The answer specifically denies all the averments.of the complaint. There is also a cross-complaint in which defendant avers that on said April 4, 1888, he and one Meux, being the owners of certain described lots of land, contracted in writing with plaintiff and certain other persons to sell them the said lands for $1,800, $600 in cash, and the balance in two equal payments, in 6 and 12 months; that the $600 sued for was the first cash payment on said contract; that plaintiff and said other persons went into possession of the land under said contract; that, when the other payments became due, defendant and said Meux aemanded payment, and tendered a good and sufficient deed of conveyance of said land, but that plaintiff and said other persons refused to pay or to accept the deed; and that said Meux assigned all his right to defendant. The prayer of the crosscomplaint is that he recover judgment against plaintiff and said other parties for said deferred payments, and for the enforcement of a lien on said land. The answer of the plaintiff, Scott, and others to the cross-complaint first denies, in terms, that there was any such contract in writing, but it admits that there was such a verbal contract, that the $600 was paid thereon, and that "then and there" the said Glenn and Meux executed, in writing, a receipt and memorandum of said contract in words and figures as follows: "Received of Scott, Cutten, [and others named] six hundred dollars, one-third of purchase price of lots Nos. leaving a balance due on said purchase, which, by the terms of this sale, is to be paid in two equal payments, together with interest, at the rate of ten per cent. per annum, on the whole of said unpaid purchase price, at the maturity of each installment, till paid, in like coin, within six and twelve mouths from date hereof. If paid as above stated, the above-named Scott, Cutten,

* * *

** will be entitled to a deed of the above-described lots; otherwise, this agreement becomes void, and all payments made hereon shall be forfeited. [Signed] J. T. MEUX & G. R. G. GLENN." The answer denies that they went into possession. It does not contain any sufficient denial of the tender of a deed as averred in the cross-complaint. Neither does it aver that Glenn and Meux had no title, or could not make a valid conveyance of the lots; the only averment on that subject being that "at no time have

the said Meux and Glenn shown to defendants, or either of them, that they, the said Meux and Glenn, had good title to said lots." In an amendment to the answer they aver that Meux did not actually sign the above memorandum, but that Glenn signed his own name and also that of Meux without written authority from the latter to do so. The only findings of fact are (1) "that all the allegations and averments of the plaintiff's complaint are true, and the allegations and denials of the defendant's answer are untrue;" and (2) that the contract mentioned in the crosscomplaint "if any such was made," was not reduced to writing and signed by the defendants to said cross-complaint, or by either of them, and that they did not take possession of the land.

Waiving the question as to what right the defendant may have for affirmative relief, we cannot see how the first finding is justified by the evidence, or upon what theory the judgment in favor of plaintiff for the $600 can be maintained. The evidence shows that the money was paid in accordance with the written instrument set forth in full in the answer to the crosscomplaint. Indeed, the only evidence introduced by plaintiff at the trial was that instrument, and proof by a witness that the $600 was paid “under and by virtue of that paper." He then rested, and detendant made a motion for a nonsuit, which was denied. Meux then testified for defendant that, while he did not sign his name to the instrument, it was signed by his agent, and that he ratified it, and joined afterwards in executing and tendering a deed in compliance with it. Defendant's evidence also showed that Meux and Glenn owned the land and could have given a perfect title; that plaintiff and his assignors made no objection to the title, or to the contract, when the deferred payments became due, but merely asked further time in which to pay, and were granted such time, until finally they concluded to repudiate the entire contract. How can it be said, therefore, that "all the allegations and averment of the plaintiff's complaint are true,"—that is, that "on the 4th day of April, 1888, said defendant was indebted to" plaintiff and his assignors in the sum of $600, gold coin of the United States, for money had and received by said defendant upon said 4th of April, 1888, for the use and benefit and on account of said plaintiff and his assignors? The plaintiff introduces in evidence a certain written instrument, which he is shown to have received and accepted, and proves that the money sued for was paid "under and by virtue of that paper. But that instrument shows that plaintiff paid the money upon the express uuderstanding and condition that it was not to be returned to him; that it was money "had and received by defendant for the use and benefit of himself," and not for use and benefit of plaintiff or his assignors. There was no necessity for the vendees to sign the written memorandum. Vassault v. Edwards, 43 Cal. 458. Moreover, they did sign it by indorsing on it an assignment to plaintiff. The court does not find whether or not Meux signed the contract

39

or was a party to it; but the evidence clearly shows that he ratified it as soon as his co-vendor informed him of it, and soon afterwards, when he came to Fresno, "again ratified the sale between the parties. and talked with the purchasers about it." Again, when the deferred payments became due, he asked the vendees for the money, and they, making no objection of any kind, simply asked for some delay until they could make arrangements to pay. They proposed at one time to give a mortgage, and then concluded not to do So. And finally Meux united with Glenn in executing and tendering a deed. This was a complete ratification; and he would have been estopped from making a defense for himself, which plaintiff seeks to suggest for him. Moreover, so far as plaintiff's alleged cause of action for the $600 paid by him is concerned, he is endeavoring to undermine an executed contract; while the principle which he invokes ap plies to actions for the enforcement of executory contracts. We see no grounds upon which the judgment in his favor can rest. The nonsuit should have been granted. It is not necessary to discuss the defendant's claim for affirmative relief, for the findings on that subject are clearly insufficient. The judgment and order are reversed and the cause remanded for a new trial.

(87 Cal. 256) WINTER et al. v. MCMILLAN. (No. 12,340.) (Supreme Court of California. Dec. 22, 1890.) NOTICE OF APPEAL-QUIETING TITLE-CROSSCOMPLAINT.

1. An appeal from a judgment by several parties, and from an order denying a motion for a new trial by one of the parties, may be taken by one notice.

2. In an action to quiet title, there is no error in excluding plaintiff's evidence that his grantor had declared a homestead on the property, though defendant claims title through an execution sale under a judgment against said grantor.

3. Under Code Civil Proc. Cal. § 442, providing that, whenever defendant seeks affirmative relief against any party affecting the property to which the action relates, he may, in addition to his answer, file a cross-complaint, there was no error in allowing defendant, in an act on to quiet

title, to file a cross-complaint alleging that the property was conveyed to plaintiff merely to secure him against liability on a bond, but that no liability was incurred by plaintiff; that the grantor was still in possession, and claimed some interest; and that defendant had title through an execution sale on a judgment against said grantor.

In bank. Appeal from superior court, city and county of San Francisco; JAMES G. MAGUIRE, Judge.

R. Percy Wright, for appellants. W. B. Tyler, (D. H. Whittemore, of counsel,) for respondent.

PATERSON, J. This action was brought against the defendant, McMillan, to quiet the title of the plaintiffs Winter and Wright to a lot of land in San Francisco. The defendant answered, denying that the plaintiffs were the owners of or had any in

terest in the land, and at the same time filed a cross-complaint, which alleges, in substance, that plaintiffs never had any interest in the property, except the naked legal title which was conveyed to them by Louis and Louise Helbing, on June 3, 1881, without consideration, and with intent to hinder, delay, and defraud the creditors of said grantors; that G. Henninger and wife recovered judgment against the said Louis Helbing for the sum of $3,500, and costs, November 11, 1881, in an action for damages, commenced April 30, 1881; that, thereafter, the property in controversy was sold to defendant on execution issued on said judgment, and in due time the sheriff executed and delivered to him a deed therefor; that the deed of the Helbings to plaintiffs was given to secure the latter against any damages they might sustain by reason of their becoming sureties on a penal bond given by said Louis Helbing, but no liability was incurred by plaintiffs on said bond; that the title still stands on the records in the name of the plaintiffs, but the said Helbings have continued to hold, and are now in possession of, the land, claiming some interest therein; that the controversy as to the title to the land cannot be settled without having the said Helbings before the court; that defendant is the owner of the property, and entitled to the possession of the same. The prayer of the cross-complaint is that the Helbings may be brought in by summons, and required to show what right, if any, they have to the property, and for a judgment that neither plaintiffs nor the Helbings have any right, title, or interest in or to the land in controversy. By order of the court, a summons was issued and served on the Helbings, but it seems that they made no appearance. The plaintiffs filed a demurrer, which was overruled, They then filed an answer denying all the allegations of the cross-complaint, and alleging that Louis Helbing had never had any right, title, or interest in the property, except such as he derived from a claim of homestead, which interest was exempt from execution and forced sale. The court found that plaintiffs were not the owners of or entitled to the possession of the property; that the Helbings were the owners of the property on June 3, 1881, simply to secure them against any liabiliwhen they deeded the same to plaintiffs ty as sureties, and that no liability had been incurred on the bond; that defendant purchased the property at execution sale, as alleged by him, and is the owner thereof. Judgment was entered in accordance with the findings. Plaintiffs moved for a new trial, which motion was denied. Thereupon the Helbings united with the plaintiffs in a notice of appeal from the judgment, which notice included also a notice of appeal by the plaintiffs from the order denying their motion for a new trial.

The respondents have moved to dismiss the appeal, on the ground that the appellants could not properly unite in two separate and distinct appeals in one notice, and in one undertaking. An appeal from a judgment, and from an order denying a motion for a new trial, may be taken by