ATTORNEY AT LAW (Continued). lating his professional duties, irrespective of any civil or criminal proceedings against him, the bar of the statute of limitations against a civil or criminal proceeding is an immaterial element.-Id. ATTORNEY'S FEE. See FRAUD, 10-12; MECHANICS' LIENS, 5-7; MORTGAGE, 14. BILL OF EXCEPTIONS. See CRIMINAL Law, 1-7. BILL OF LADING. See SALE, 1, 3. BOND. See APPEAL, 1, 2; ESTATES OF DECEASED PERSONS, 9, 10; MUNICIPAL CORPORATIONS, 2-4; STREETS, ROADS, AND HIGHWAYS, 11-14. BOUNDARIES. 1. MONUMENTS-COURSES AND DISTANCES.-Where no monuments, natural or artificial, called for by description, or by the field notes of a survey, are to be found, the courses and distances called for must control.-O'Hara v. O'Brien, 309. 2. ERRONEOUS SURVEY OF SECTION LINE.-Where the original survey of a section shows that the section and quarter sections were full, and only the monuments fixing the eastern line of the section are found, it is error for a county surveyor, instead of starting from the northeast and southeast corners of the section, and surveying the section and quarter sections by courses and distances, so as to make them full, to attempt to start from a corner in another township, and assuming that certain fences had been located on section and quarter section lines, to survey so as to reduce the length of the south boundary line of the section to less than the eighty chains provided for in the original survey.-Id. 3. DESCRIPTION-PAROL EVIDENCE-MONUMENTS-IDENTITY OF LAND. -In the description of the boundaries in a conveyance, monuments designated as the corners of the tract conveyed, which can be ascertained, will prevail over designated measurements, and parol evidence offered for the purpose of pointing out upon the surface of the earth the monuments which had been agreed upon in the sale, and which were named in the conveyance, is admissible to show the identity of the land conveyed with that upon which the trespass was committed.-Stinchfield v. Gillis, 84. BUILDING CONTRACT. See CONTRACT, 18-29; MECHANIO'S LIEN. CERTIORARI. See INSOLVENCY, 2. CHATTEL MORTGAGE. See MORTGAGE, 15-22, COMMERCE. See CONSTITUTIONAL LAW. COMPROMISE. See CONTRACT, 16. CONSTITUTIONAL LAW. 1. INTERSTATE COMMERCE-LICENSE TAX UPON RAILROAD COMPANY. -A license tax imposed by a municipal corporation upon a rail CONSTITUTIONAL LAW (Continued). road company engaged in interstate commerce is void and cannot be enforced.-City of San Bernardino v. Southern Pacific Company, 524. 2. TAX UPON BRANCH LINE.-The fact that the license tax was imposed upon a branch line of railroad operated in the municipality does not render the tax valid, where it appears that the branch line was a part of the transcontinental line of railroad, and the railroad company is engaged in the carriage of passengers, freight, and mails between all points on the branch line and points on the main line of the railroad outside of the state of California.-Id. See MUNICIPAL CORPORATIONS, 21; PLACE OF TRIAL, 2; WATER CONTRACT. 1. INTERPRETATION-SEEMING CONTRADICTION.-Where there are several provisions or particulars in a contract, a seeming contradiction in the particulars must be avoided, if possible, by such a construction as will give effect to all of the provisions, and allow them all to stand.-Lassing v. James, 348. 2. CONTRACT For Pasturage OF CATTLE.-In a contract for the pasturage of cattle in fields of growing alfalfa, in which were situated nine stacks of hay, a provision in the contract that five dollars per ton is to be paid for each and every ton of hay fed between certain dates is only seemingly repugnant to another clause of the same contract by which the owner of the cattle agrees to pay in installments for all the hay in the nine stacks; but the second clause is simply broader, and reaches further than the first.-Id. 8. UNCERTAINTY IN CONTRACT-ORAL EVIDENCE.-Where the terms of a contract are ambiguous or uncertain it must be interpreted in the sense in which the promisor believed at the time of making it that the promisee understood it; and where, in a contract for the purchase of hay, the oral evidence shows beyond question that both parties understood that the owner of the cattle was buying all of the hay in stacks, at a certain price per ton, the contract must be so interpreted.-Id. 4. PRESUMPTION AGAINST PROMISOR.-In cases of uncertainty the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist, and the promisor is presumed to be such party; and, if the promisor actually prepared the contract, he is the one who caused any uncertainty to exist as to his promise, and it must therefore be interpreted most strongly against him.-Id. 5. INTENTION OF PARTIES TO BE REGARDED-DISKARD OF ERRONEOUS PARTS OF CONTRACT.-Where the owner of the cattle prepared the written contract, and brought it to the owner of the hay to sign, which he refused to do unless a provision were inserted that the owner of the cattle should take all of the hay in stacks or none, whereupon a provision for the payment of the hay used, at the rate of five dollars per ton, was stricken out, and a provision added as to taking all of the hay in the stacks, and providing for the measurement of it, and partial payments therefor, according to the number of tons found to be in the stacks, the fact that a provision of general similar import to the one erased still remained in another part of the contract, when all the circumstances show that CONTRACT (Continued). the omission to erase that part of the contract was through mistake and oversight, and it was not intended to be left there, the intention of the parties must be regarded, and the erroneous part of the writing must be disregarded in the interpretation thereof, under section 1640 of the Civil Code.-Id. 6. ADMISSIBILITY OF PAROL EVIDENCE.-Parol evidence is admissible for the purpose of enabling the court to ascertain whether or not the principles embodied in sections 1640, 1649, or 1654 of the Civil Code are pertinent and applicable to the facts of any particular case.-Id. 7. SALE OF HAY IN STACKS-PROVISION FOR MEASUREMENT-PASSING OF TITLE.-In a contract for the sale and purchase of all the hay in nine stacks, at five dollars per ton, an agreement to ascertain the number of tons at some future time by weight and measurement does not affect the question as to the present passing of the title, but is only material as fixing the amount of money to be paid; and the hay being identified, and the price per ton agreed upon at the date of the contract, these are the only essentials necessary to constitute a valid sale.-Id. 8. REPUDIATION OF CONTRACT-RESALE OF HAY.-Where the owner of the cattle repudiated the contract for the purchase of the hay in stacks, and removed his cattle from the fields, it is not the duty of the vendor of the hay, after the title had passed to the vendee, to resell the hay to the best advantage possible for the benefit of the vendee.Id. 9. ELECTION OF REMEDY.-Where a vendor has a right to sell personal property under the facts of any particular case he has the right to choose his remedy as between suing for the entire purchase price or selling the property and bringing an action for the difference, in case the sale results in a loss.-Id. 10. REPUDIATION OF CONTRACT BY PURCHASER-FAILURE OF VENDOR TO PROVIDE FEEDING-RACKS.-Where the contract for the feeding of the cattle and the purchase of the hay in stacks provided that, if it was necessary to save hay while feeding, feeding-racks were to be constructed, and it appears that the owner of the cattle suffered no loss or damage by reason of the failure to furnish feeding-racks, any breach of the contract in that respect is harmless, and does not afford ground for repudiation of the contract; and, where the court finds that no necessity for feeding-racks was ever known to the vendor, and that the cattle were not removed from the premises because of the failure to furnish feeding-racks, the purchaser cannot rely upon the absence of feeding-racks as a ground for repudiation of the contract.-Id. 11. CONTRACT FOR SERVICES-DRYING OF PRUNES-IMPLIED OBLIGATION OF SKILL.-Under a contract to render services for another in the drying of prunes, without specifying in the contract the degree of care or skill to be employed for the purpose, there is an implied obligation to dry the prunes in a proper and skillful manner, under the provisions of section 1983 and 1984 of the Civil Code.-Thomas Fruit Company v. Start, 206. 12. ACTION FOR SERVICES-COUNTERCLAIM FOR NEGLIGENCE AND WANT OF SKILL. In an action to recover promised compensation for the drying of prunes the defendants may counterclaim damages sustained by reason of the negligence and want of skill of the plain CONTRACT (Continued). tiff in the performance of the contract, whereby the prunes were injured.-Id. 13. FAILURE TO USE CARE AND SKILL-FINDING-CONFLICTING EVIDENCE. Where the evidence conflicts as to the failure of the plaintiff to exercise care and skill in drying the fruit, à finding of such failure will not be disturbed upon appeal, especially where the evidence appears to preponderate in favor of the conclusion of the trial court.-Id. 14. EFFECT OF SALE OF DRIED PRUNES AT USUAL PRICES-LIABILITY FOR WANT OF CARE.-The circumstance that the defendants sold at usual prices a large part of the prunes dried by the plaintiff, and incurred no loss as to the portion sold, though it may be relevant evidence, and proper for consideration upon the question whether the value of the prunes was really lessened, and to what extent, cannot overcome a finding sustained by evidence that plaintiff failed to exercise care and skill in drying the fruit, nor exempt plaintif from responsibility to the defendants for want of care and skill.-. Id. 15. EVIDENCE-BOXES OF DRIED PRUNES.-Boxes of prunes dried by the plaintiff being a finished and separable part of the manufactured product, the character of which was in question, may be properly received in evidence for the defendants; and the question whether they were fair samples or not goes to the weight of the evidence and not to its admissibility.—Id. 16. CONTEST OF WILL-AGREEMENT OF COMPROMISE-BREACH OF EXECUTORY CONTRACT-DAMAGES.-Where the heirs of a decedent instituted a contest of a will as against the surviving wife, and a compromise was agreed upon under mistake of the wife as to the amount of the estate, after the discovery of which mistake she gave notice of rescission of the agreement of compromise, whereupon the heirs continued the contest, in disregard of the executory agreement and without any bona fide or valid offer or tender of performance of the agreement of compromise on their part, they cannot, in an action upon the agreement of compromise recover the amount agreed to be paid by the terms of the compromise, but, having broken the contract on their part, and not performed any of their covenants, a judgment against them, in an action for breach of the contract of compromise, will be affirmed where no damage is alleged or proved to have grown out of the defendant's breach of the executory contract.-Hellings v. Heydenfeldt, 577. 17. OBLIGATION TO PAY MONEY-CONSIDERATION-EXECUTORY CONDAMAGES OF FOR BREACH-PLEADING.-The TRACT MEASURE measure of damages upon an obligation to pay money is not the amount due by the terms of the obligation, with interest thereon, unless the consideration has passed to the obligor; but, when the consideration has not passed, and the contract is executory on both sides, and the promisee has not done the things required of him to be done, nor made a bona fide or valid offer or tender thereof, so as to pass the consideration to the promisor, he can only recover the actual damages, if any, suffered by the repudiation of the contract by the promisor, and must plead such damages in order to recover the same.-Id. CONTRACT (Continued). 18. BUILDING CONTRACT-RIGHT OF MATERIALMAN TO GIVE NOTICETIME OF NOTICE-ASSIGNMENT BY CONTRACTOR-CONSTRUCTION OF STATUTE.-Under section 1184 of the Code of Civil Procedure a materialman may give notice to the reputed owner of the structure of his claim for material furnished at any time before money falls due under the contract, and no assignment made by the contractor of an amount to become afterward due to him in the course of performance of the contract can, before the arrival of the time of payment, defeat the right of the materialman to give the notice provided for in the statute and to obtain the benefit thereof; and the notice may be effectually given so long as the money is owed to the contractor himself, although the time when it should have been paid is passed.-First Nat. Bank of Bridgeport, Ohio, v. Perris Irrig. Dist., 55. 19. ASSIGNMENT BY WAY OF SUBSTITUTE FOR ORIGINAL CONTRACTOR.— An assignment made by the original contractor to another person or company before the completion of the work vests in the assignee, prior to the expiration of thirty-five days from the date of the completion of the work, no rights different from or superior to those of the original contractor.-Id. 20. ASSIGNMENT OF BALANCE Due Under CONTRACT-Loss of RIGHTS OF MATERIALMAN.-An assignment made of the balance of the contract price after it has become due and payable under the terms of the contract, with notice to the reputed owner of such assignment, cuts off all rights of materialmen in the funds so assigned, and any notice afterward given by a materialman is futile, provided the assignment was without notice of the unpaid demand.-Id. 21. ASSIGNEE IN GOOD FAITH NOT SUBJECT TO LATENT EQUITIES.— An assignee of a sum due, who purchases in good faith and for value, takes the assignment free from the latent equities of third persons of which he has no notice.-Id. 22. PRESUMPTION UPON APPEAL-NOTICE-FINDINGS.-It cannot be presumed upon appeal, in support of the findings and judgment, that no notice other than that expressly found by the court, and prior to it in point of time, was served on the owner of the structure.--Id. OF 23. FINDING-PRESUMPTION OF VALIDITY.-Where the court finds that a contract was entered into and that it was performed it cannot be presumed upon appeal, without proof, that a contract was void for want of filing, or for any other reason.-Id. 24. NOTICE OF CLAIM OF MATERIALMAN-LIEN-INTERCEPTING CONTRACT PRICE-LIMITATIONS.-A materialman is not required to record notice of his claim in the office of the county recorder, as in case of claiming a lien against the building or structure, in order to avail himself of the remedy provided for by section 1184 of the Code of Civil Procedure for intercepting the contract price in the hands of the owner by notice, and the validity of such notice is not dependent upon proceedings to enforce a lien upon the property affected by the contract, nor is such notice subject to the limitation provided for by section 1190 of the Code of Civil Procedure. -Id. 25. BUILDING CONTRACT-ENTIRETY-LIMITATION OF ACTION-RUNNING OF STATUTE.-Where a materialman has an entire contract with the contractor to furnish all the iron couplings to be used |