able delay in making the election; and this would have ended the case, and rendered errors in other matters immaterial. In other words, it was only by reason of the fact assumed in the instruction that the appellant could get to the jury at all; and this being so, we think that the assumption of that fact was an assumption in his favor, and that he cannot complain of it.

(b) It is said that the judge improperly assumed a fact when he charged that "if the jury find, from the evidence, that on the day when plaintiff was served with the account of sale by the defendant, Finigan assumed," etc. The argument is, that this assumes that the plaintiff "was served with the account of sale by the defendant." But the plaintiff admits that he was served by the defendant with a statement of account. This fact is undisputed, and hence the appellant was not injured by its assumption. His counsel, who certainly has argued the case with zeal and ability, says that the instruction does not refer to the account above mentioned, but to another account which the defendant says he delivered to the plaintiff, but which the plaintiff denies that he received. We are by no means certain that this is the case, or that the jury so understood it. But assuming that the instruction refers to the latter account, there was nevertheless no injury; for the two accounts are, for all purposes which are material to the question in hand, substantially the same. The account which the plaintiff admits that he received from the defendant was received by him about the same time as the other; and it informed him (though in a more condensed mode) that the securities had been sold, the date of the sale, and the price they brought. This, with what he admits that the defendant told him at the time, was all that it was material for him to know. The foregoing disposes also of what is claimed to have been a similar assumption in another instruction.

4. It is argued that there was error in instructing the jury that the presumption as to the measure of damages established by section 3336 of the Civil Code is a disputable presumption. We do not find it necessary to determine this question. There was no evidence tending to rebut the presumption (unless the evidence going to defeat the plaintiff's claim altogether be considered such, in which view there was of course no injury), and no question relating to it was submitted to the jury. The instruction, therefore, was purely abstract; and in view of all the circumstances of the case, we do not see how it could have

misled the jury. The assignments as to the admissibility of evidence were not pressed at the oral argument, and we do not think they require special notice.

Upon the whole record, we see no prejudicial error, and the order appealed from is therefore affirmed.

PLEDGE. For an exhaustive note on the law of pledges, see Lucketts v. Townsend, 49 Am. Dec. 730-738; also Robinson v. Hurley, 79 Id. 500–506. If a bank holding bonds as collateral security sells them at public sale, and itself becomes the purchaser, no title passes by such sale, and the bank will be still considered as holding them under its original title as collateral security for the payment of the debt due to it from the owner of the bonds: Bank of the Old Dominion v. Dubuque etc. R. R. Co., 8 Iowa, 277; 74 Am. Dec. 302. Pledgee cannot purchase at his own sale, upon the same principle that a trustee cannot purchase at his sale: Maryland Fire Ins. Co. v. Dalrymple, 25 Md. 242; 89 Am. Dec. 779, and note 791.

HARMLESS ERROR. - Instances of what is: See note to Columbus etc. R'y v. Bridges, ante, p. 64; St. Louis etc. R'y Co. v. Mackie, 71 Tex. 491; 10 Am. St. Rep. 766. Errors committed in favor of an intervenor, to whom no relief of any kind is finally granted, are without prejudice, and no ground for reversal on appeal: Farmers' Bank v. Arthur, 75 Iowa, 129. Where the party appealing has not been prejudiced by an erroneous instruction, the appellate court will not reverse the judgment: Commonwealth v. Lucas, 84 Va. 303; Wager v. Barbour, 84 Id. 419. An instruction which might have a broader meaning than was properly intended, but which did not in fact mislead the jury, is harmless to the appellant: In re Burrell, 77 Cal. 479. An order setting aside a former order, which has expired by its own terms, is of no effect, and hence no ground for reversal: Blair v. Blair, 74 Iowa, 311. The erroneous refusal to allow an amendment to the answer becomes harmless, if the defendant was allowed to introduce all the evidence which he could have introduced under the proposed amendment: Southern Pacific R. R. Co. v. Purcell, 77 Cal. 69. Where, on the trial, the plaintiff admits the falsity of certain allegations of his complaint, which were essential to his cause of action under every possible construction of the pleading, any error in the admission or rejection of evidence is harinless: Turner v. White, 77 Id. 392. A judg ment sustained by the evidence and the findings of the appellate court will not be reversed on account of the giving of an instruction as to the measure of damages, when it clearly appears, from the evidence, that the jury were not misled by it: Hamburg Amer. etc. Co. v. Gothman, 127 Ill. 599. A judgment will not be reversed because a technical error has intervened, when it is apparent, from the whole record, that substantial justice has been done, or if, upon the facts, the same verdict must have been rendered if the error had not been committed: Chicago City R'y Co. v. Duffin, 126 Id. 100. A judgment will not be reversed because improper evidence may have been admitted upon trial, when it is apparent that the result must been the same had it been excluded: Bulkley v. Devine, 127 Id. 407. Although instructions given in behalf of the plaintiffs state the defense broader than the issues and evidence, it will not work a reversal for plaintiff, unless the appellate court can see that injury has resulted to defendant from the error: People's Fire Ins. Co. v. Pulver, 127 Id. 247. Sustaining a demurrer to a special plea, if erroneous, is not a ground for reversal, when the record shows that the de

fendant had the benefit of the same defense under other special pleas: Phænix Ins. Co. v. Copeland, 86 Ala. 551; compare Graham v. Woodall, 86 [d. 313; Brown v. Commercial Ins. Co., 86 Id. 189. The failure of the court to pass on objections to interrogatories, if erroneous, is error, but error without injury, when the record shows that the same objections were urged to the answers of the witness, and were then decided by the court: Trammell v. Hudman, 86 Id. 472. Where the record shows that the damages awarded by the jury were strictly compensatory, the court will not inquire into the correctness of charges as to the right to recover punitive damages, since, if erroneons, they could not have injured the defendant: City of Eufaula v. Simmons, 86 Id. 515. When the complaint contains the common counts and a defective special count, and the plaintiff establishes his right of recovery under the former as if the special count had been stricken out, while defendants have the full benefit of every defense which could have been made under the special count, the overruling of a demurrer to the special count is a harınless error: Eskalla v. Wilson, 86 Id. 487; compare also the cases of Fairfield v. Barrette, 73 Wis. 463, and Bryant v. Stainbrook, 40 Kan. 356.

[IN BANK.]

TAPIA V. DEMARTINI.

177 CALIFORNIA, 383.]

MORTGAGE TO SECURE FUTURE ADVANCES - PRIORITY OVER SUBSEQUENI ENCUMBRANCES BY MECHANICS' LIENS OR OTHERWISE. — Mortgage made in good faith to cover future advances of money or goods is valid, if properly recorded, as against subsequent encumbrancers by mechanics' liens or otherwise, except as to advances made after actual, as distinguished from record, notice of a subsequent encumbrance, although the mortgage does not disclose upon its face that it was given in part for future advances, if the amount of liability is expressly limited, and although the agreement for advances be not in writing.

PAROL TRUST IN MORTGAGES VALID - EVIDENCE OF TRUST IS ADMISSIBLE AS NOT VARYING WRITING. — Parol agreement that a mortgage shall be held in trust by the mortgagee, in part for his own benefit and in part for the benefit of another, is valid in California, a mortgage conveying no estate in, but creating a mere lien upon, the land; and evidence of such agreement does not vary the terms of the written instru

ment.

SUIT to dissolve a partnership. The opinion states the facts. Smith and Ford, for the appellant.

B. Schlessinger and J. F. Ramage, for the respondents.

WORKS, J. Suit was brought by the plaintiff against certain of the defendants to dissolve a partnership alleged to exist between them in carrying on the business of mining, and to close up and adjust the partnership affairs. Subsequently,

numerous other parties, who claimed to hold liens against the property of the copartnership, were made defendants, and set up, by way of answer, their respective claims of liens, most of which were mechanics' liens, for labor performed on the mining property of the firm.

The defendants, Busch, Mooney, Castagnetto, and Sorocco, also filed their cross-complaint, alleging, in substance, that the plaintiff and the defendants, his copartners, on the first day of February, 1888, executed to said defendant Busch his promissory note for $5,000, payable one year after date, with interest at the rate of six per cent per annum, and to secure the payment thereof executed to said defendant their mortgage on the real estate in controversy in this action; that at the time said note and mortgage were so executed, the mortgagors were indebted to said Busch and one Herringlake, his partner, in the sum of $571.22, and to the defendant Mooney in the sum of $1,425.14, and to the defendant Crowell in the sum of $1,152.27; "that said note and mortgage were executed and delivered with the understanding and agreement among all the parties thereto, and said Mooney and Crowell, that the same were so executed and delivered to secure the payment of the several balances of account aforesaid then due said Busch and Herringlake, as copartners aforesaid, and said Mooney and Crowell respectively, and to secure further sums to become due for goods, wares, and merchandise, to be afterward sold and delivered, by said Mooney and Crowell respectively, to said mortgagors, not exceeding the sum agreed to be paid in said promissory note." It is further alleged that Mooney, under said agreement, furnished goods, wares, and merchandise to the amount of $2,174.43, and the amounts due and unpaid to the respective parties are stated.

The recording of the mortgage, and the fact that, prior to the commencement of the suit, the said Crowell had sold, assigned, and delivered his account and all his rights under the mortgage to the defendants, Castagnetto and Sorocco, are alleged, and it is asked that Herringlake, partner of Busch, be made a party, and that the lien of certain of the defendants be declared subordinate to the claims under said mortgage, and the property sold to satisfy the said mortgage lien.

With the pleadings in this condition, it was stipulated, by all the parties in interest, that a decree might be entered dissolving the partnership, and ordering the sale of the property and the payment of the proceeds of the sale into court, to be

AM. ST. REP., VOL. XI.-19

applied on the respective claims of the parties, according to their priority, to be determined by the court thereafter. The decree was entered, the property sold, and the proceeds paid into court.

The court below, in adjusting the liens, held that, as between the defendant Mooney and the other lien-holders, the mortgage held by Busch created no lien in his favor, and the final decree was rendered accordingly.

The defendant Mooney alone appeals to this court.

Three questions are presented for our consideration:

1. Was the mortgage executed to Busch valid, as against subsequent encumbrances, for future advancements?

2. Was such mortgage a valid and effective lien in favor of Mooney, he not being named as a mortgagee, or mentioned therein, and no trust in Busch, for his benefit, being declared in writing?

3. If the mortgage was valid for any purpose in favor of Mooney, was it binding as between him and subsequent encumbrancers, as to future sales of goods and merchandise, under the parol agreement for advances under the mortgage? 1. It is firmly settled by a long line of decisions that a mortgage, made in good faith to cover future advancements or indorsements, is valid, not only as between the immediate parties to the instrument, but as against subsequent purchasers or encumbrancers, if properly recorded: Civ. Code, sec. 2884; Tully v. Harloe, 35 Cal. 302, 309; 95 Am. Dec. 102; Ackerman v. Hunsicker, 85 N. Y. 46; 39 Am. Rep. 621; Googins v. Gilmore, 47 Me. 13; 74 Am. Dec. 472; Morris v. Cain, 39 La. Ann. 712; 1 Jones on Mortgages, secs. 373, 374; Shirras v. Caig, 7 Cranch, 34; McDaniels v. Colvin, 16 Vt. 300; 42 Am. Dec. 512; Ward v. Cooke, 17 N. J. Eq. 93, 99; 3 Pomeroy's Eq. Jur., secs. 1197, 1198.

The mortgage under consideration is in the ordinary form, and does not disclose upon its face that it is given in part for future advancements. While it is better and more consistent with open and fair dealing that the mortgage should express its object, this is held not to be necessary to its validity if the amount of liability to be incurred under it is expressly limited: Tully v. Harloe, supra; Morris v. Cain, supra; Lawrence v. Lucker, 64 U. S. 14, 26; 1 Jones on Mortgages, sec. 374; Shirras v. Caig, supra; Maroney's Appeal, 24 Pa. St. 372; Witczinski v. Everman, 51 Miss. 841.

Nor is it necessary that the agreement under which ad