INDEX-VOL. 13.

ACCORD AND SATISFACTION. See Contract, 8.

AGENCY.

1. EXCLUSIVE AGENCY FOR SALE OF MOTOR CARS-BREACH OF CONTRA OF
BY PRINCIPAL SUPPORT OF FINDINGS.-In an action by one to whom
an exclusive agency was contracted for to sell defendant's motor cars
within a specified territory, to recover from the principal damages
for the breach of such contract, it is held that findings that plaintiff
complied with the contract on his part and was at all times ready,
able and willing to perform it in all respects, but that defendant
violated the contract, to plaintiff's great damage, by soliciting orders
within the territory allotted to such exclusive agency, in violation
and breach of its contract with plaintiff, are fully supported by the
evidence. (Schiffman v. Peerless Motor Car Co., 600.)

2. MEASURE OF DAMAGES FOR BREACH OF CONTRACT.-The measure of
damages for such a breach of the obligation of the contract is
found in the general rule presented in section 3300 of the Civil Code,
as being that amount which will compensate the plaintiff for all the
detriment proximately caused thereby, or which, in the ordinary
course of things, would be likely to result therefrom. (Id.)
3. DEPRIVATION OF PROFITS NOT SPECULATIVE OR UNCERTAIN.-The
profits which plaintiff was deprived of by the breach of the contract
for an exclusive agency in specified territory are those which he
would have made from the sale of machines wrongfully sold by de-
fendant therein, had the defendant refused to invade the exclusive
territory granted to him, or have referred inquiries of purchasers
to him as it agreed to do in the contract. There is nothing specula-
tive or uncertain as to the amount of the profits of which plaintiff
was thus deprived, but their loss is so closely connected with the
breach of the obligation that the injury is not remote in its nature
or origin. (Id.)

4. PROFITS AND ADVANTAGES EXPRESSLY AGREED.-When profits and
advantages are expressly stipulated for in the contract, and are the
real purpose and direct and immediate fruit of a contract, they are
part and parcel of it and must be considered as entering into and
constituting a portion of its very elements, and they cannot be said
to be collateral or remote. (Id.)

5. ESTOPPEL OF DEFENDANT.-The defendant violating its express con-
tract is estopped to deny that plaintiff would have made sale of the
machines sold by defendant but for its violation of the contract.
(ld.)

(797)

AGENCY (Continued).

6. SALES OF LUMBER-COLLECTION AGENT FOR DEFENDANT-DELIVERY OF ORDERS TO CUSTOMERS-CHARGE TO AGENT-PAYMENT OF EXCESS -RECOVERY BY ASSIGNEE.-When a lumber company, assignor of plaintiff, stood in the position of an agent for defendant company in collecting sales of its lumber and making collections, and the lumber sold was directly delivered by defendant to each customer and the price charged to its agent, the agent can only be held chargeable with the actual contract price of the lumber shipped to a customer; and where, by mistake, an overcharge was made to the agent, and the excess was paid to defendant, in ignorance of the error, the agent company was entitled to reimbursement from defendant of the amount of the error occasioned by defendant's act, and the plaintiff company, as its assignee, may recover judgment for such amount, where no part of it was ever paid. (Kiefhaber Lumber Co. v. Consolidated Lumber Co., 111.) 7. SUFFICIENCY OF ASSIGNMENT.-A written bill of sale subsequently made by the agent company transferring all of its assets to the plaintiff company, including its claim against the defendant for reimbursement of the excess paid to defendant, entitles the plaintiff to recover the amount thereof. (Id.)

8. ASSIGNMENTS OF INSUFFICIENCY OF EVIDENCE-SUPPORT OF FINDINGS AND JUDGMENT.-Where the only specifications of error made by the defendant company appealing relate to the insufficiency of the evidence to sustain the findings, and there is evidence sufficient to support every finding made by the court in favor of plaintiff and its assignor, and against the answer of the defendant, and the findings support the judgment for plaintiff, the decision of the trial court must be sustained. (Id.)

See Attorney at Law; Assignment, 9, 12–16, 21, 22; Contract, 42; Corporations, 8, 11, 22-24.

APPEAL.

1. APPEAL FROM Judgment-DISMISSAL-FAILURE TO FILE TRANSCRIPT IN TIME-INSUFFICIENT EXCUSE.-An appeal from the judgment must be dismissed for failure to file the transcript in time, where no such facts appear to excuse the delay as are stated in rule II of this court. The pendency of an appeal from an order refusing to change the place of trial is no sufficient excuse for failure to file the transcript on appeal from the judgment within the time limited therefor. (Nutley v. Metropolis Construction Co., 588.)

2. APPEAL FROM JUDGMENT DISMISSAL-FAILURE TO FILE TRANSCRIPT IN TIME-INSUFFICIENT EXCUSE-APPEAL FROM VENUE ORDER.-An appeal from the judgment must be dismissed for failure to file the transcript in the time limited by the rules of the court, if there is no unsettled statement or bill of exceptions that might be used di

APPEAL (Continued).

rectly on such appeal. It is an insufficient excuse to prevent such dismissal that an independent appeal is also pending from an order refusing to change the place of trial, and that there is an unsettled bill of exceptions thereon, and that appellant wishes to incorporate such appeal with the appeal from the judgment. (Union Lumber Co. v. Metropolis Construction Co., 584.)

3. CONSTRUCTION OF RULE II-PENDENCY OF BILL OF EXCEPTIONS OR STATEMENT. The bill of exceptions or statement of the case unsettled, allowing an excuse for delay in filing the transcript under rule II, is a bill or statement "which may be used in support of such appeal"—that is, the appeal from the judgment-and that rule does not refer to a bill of exceptions such as was prepared on a motion to change the place of trial. (Id.)

4. SHOWING BY COUNTER-AFFIDAVIT

INSUFFICIENT GROUND FOR CHANGE OF VENUE-DEMAND AFTER RULING ON DEMURRER.-Where the counter-amidavit for respondent shows that the appellant failed to file his motion or demand or affidavit of merits for a change of the place of trial until after a demurrer filed to his complaint had been overruled, upon such showing he failed to comply with the statute, and his demand should be denied. (Id.)

5. INSUFFICIENT SHOWING BY APPELLANT-PRESUMPTION OF INSUFFICIENT GROUNDS.-Where the grounds on which the change of the place of trial was moved for by the appellant do not appear, presumptively they were wholly insufficient and the motion properly denied, and it may be, as shown by respondent, that one of the grounds on which the court denied the motion was that the demand was not made in time. (Id.)

6. NOTICE JUDGMENT AND ORDER SUFFICIENCY OF EVIDENCE RECORD JUDGMENT-ROLL-ABSENCE OF EVIDENCE-PRESUMPTION— AFFIRMANCE. Where a notice of appeal was from the judgment and from an order denying a new trial, and the appeal is based upon the sole ground that the evidence does not support the findings, but the sole record upon appeal consists of the judgment-roll comprising the complaint, answer, findings and judgment, without any evidence brought up, and the transcript fails to show that any motion for a new trial was made, in this condition of the record, it must be assumed that the evidence was sufficient to support the findings, and where the findings are sufficient to support the judgment, the judgment and order must be affirmed. (Brown v. Grand Lodge of Ancient Order of United Workmen of California, 537.)

7. ACTION BY WIFE UPON BENEFIT CERTIFICATE-PRESUMPTION OF DEATH OF HUSBAND-DILIGENT SEARCH-CONCLUSIVE FINDING.-In an action by a wife upon a benefit certificate payable to her upon her husband's death, his death must be presumed from his pro

APPEAL (Continued).

longed absence for seven years, where it is conclusively found, in the absence of any evidence in the record, that the wife had made diligent search for her absent husband, and had made inquiries at all places where her husband might reasonably be expected to be found, if alive, and that she had exhausted every source of information in her efforts to locate him, but all without avail (Id.)

8. ORDER APPOINTING RECEIVER- - STAY OF EXECUTION DUTY OF TRIAL JUDGE-MANDAMUS.-Upon appeal from an order appointing a receiver, it is the duty of the judge of the superior court to fix the amount to be specified in an undertaking to stay the execution of the order pending the appeal; and in case of his refusal to do so, the writ of mandate will lie to compel such action. Pottery Works v. Superior Court, 360.)

(Winsor

9. PETITIONER AGGRIEVED BY ORDER APPEALED FROM.-Where the petitioner was made a party defendant to the receivership of corporation property, and it was sought to take possession of lands owned by him and recover possession of the same, he was aggrieved by the order and entitled to appeal there from, and had the right to give an undertaking to stay its execution. (Id.)

10. ALTERNATIVE METHOD SERVICE OF NOTICE-DEFECTIVE BOND -JURISDICTION-MOTION TO DISMISS.-Although an appeal seems to have been attempted under the former method by service of the notice and the filing of a defective bond, yet since, under the alternative method, no bond is required to give this court jurisdiction of the appeal, it cannot be dismissed on motion for mere insufficiency of the bond. (Colusa Milling Co. v. Draper Dray and Storage Co., 329.)

11. DISMISSAL FOR NEGLECT TO FILE TRANSCRIPT IN

TIME.-Under

rules II and V of this court, if the appellant in a civil action has, without excuse, failed to file the transcript within forty days after the appeal is perfected, the respondent is entitled upon motion, after notice given, to have the appeal dismissed. (Id.)

12. DISMISSAL-FAILURE TO FILE TRANSCRIPT-NON APPEARANCE OF APPELLANT-PRESUMPTION-VEXATIOUS APPEAL FOR DELAY-DAMAGES.-Upon a motion to dismiss an appeal for failure to file the transcript within the time limited, and for damages for a vexatious appeal for delay, where, after the service of the appellant with notice of the motion, the appellant fails to respond, and no excuse appears for the delay, it must be assumed that the purpose of the appeal was as stated in the motion of respondent, and the appeal will be dismissed, with damages assessed against the appellant. (Chiafullo v. Schwab, 152.)

13. MOTION TO DISMISS-TIME FOR FILING POINTS AND AUTHORITIES-DEATH OF RESPONDENT'S ATTORNEY-PROCEEDINGS SUSPENDED

APPEAL (Continued).

-MOTION DENIED.-Under section 286 of the Code of Civil Procedure, upon the death of the attorney for respondent, all proceedings against respondent on behalf of appellant were suspended until such time as respondent voluntarily, or in response to proceedings instituted by appellant, appointed another attorney, or appeared personally; and where a newly appointed attorney for respondent at once moved to dismiss the appeal for failure of appellant to file its points and authorities in time, and it appeared that at the time of such death appellant had unexpired time therefor, they were properly filed within such time after appointment of the new attorney, and when filed within proper time thereafter, the motion to dismiss the appeal must be denied. (Troy Laundry Machinery Company, Limited, v. Drivers' Independent Laundry Company, 115.)

14. APPEAL FROM JUDGMENT ABSENCE OF SUMMONS, DEMURRER OR ANSWER-RECITAL IN JUDGMENT OF APPEARANCE BY ATTORNEYS.— Upon an appeal from a judgment upon the judgment-roll, the judg ment cannot be reversed merely because the judgment-roll contains no summons or evidence of service thereof, nor any demurrer or answer, where the judgment recites that the defendants so appealing appeared by attorneys, and there is nothing in the record to contradict such recital. (Brown v. Caldwell, 29.) 15. NOTICE OF APPEARANCE NO PART OF JUDGMENT-ROLL.-While, under section 1014 of the Code of Civil Procedure, the answer or demurrer therein provided for is made by section 670 thereof part of the judgment-roll, the notice of appearance provided for in the former section is made no part of the judgment-roll. (Id.) 16. EFFECT OF RECITAL IN JUDGMENT-PRIMA FACIE EVIDENCE-PRESUMPTION-SUPPORT OF FINDING.-The recital in the judgment that defendant appeared by his attorneys is prima facie evidence of such fact; and where nothing appears in the record upon appeal in contradiction of the fact so found, it must be presumed that the evidence presented to the court fully supports such finding. All presumptions are in favor of the correctness of the judgment appealed from.

(Id.)

17. JURISDICTION OF PERSON-ENTRY OF DEFAULT NOT ESSENTIAL TO JUDGMENT. It appearing that the court obtained jurisdiction of the person of the defendant so complaining, by reason of his appearance, no formal entry of his default was necessary to enable the court to render judgment against him by default. (Id.) 18. EXCESSIVE ALLOWANCE OF INTEREST-MODIFICATION OF JUDGMENT. Where no issue was joined on the question of interest, no relief can be granted to the plaintiff in excess of the interest credited and claimed to be due only from a certain date; and the jua ment must be modified as to interest allowed from a prior date. 13 Cal. App.-51