ant, and demanded that he repay the said sum of $4,000, but defendant refused, ever since has refused, and still refuses, to pay the same, or any part thereof. Some time in 1888 defendant sold, conveyed and delivered possession of the property mentioned in the contract to other parties. Wherefore plaintiff prayed judgment against the defendant for the sum of $4,000, with interest and costs. The defendant interposed a general demurrer to the complaint, and it was sustained by the court. The plaintiff declined to amend, and thereupon judgment was entered that he take nothing. From that judgment plaintiff appeals. We think the demurrer was improperly sustained. The case in all material respects is like Cleary v. Folger, 84 Cal. 316, 24 Pac. Rep. 280, and Drew v. Pedlar, 87 Cal. 443, 25 Pac. Rep. 749; and on the authority of those cases we advise that the judgment be reversed, and the cause remanded, with directions to the court below to overrule the demurrer.

BELLEGARDE. V. SAN FRANCISCO BRIDGE Co. (No. 13,215.)

(Supreme Court of California. July 10, 1891.)

NEGLIGENCE-APPEAL-REVIEW.

In an action for injury to plaintiff's property caused by defendant in filling in a street, the court, in its instructions, limited plaintiff's right of recovery to the hypothesis of defendant's negligence, and the jury found for the plaintiff. Held, that as there was some evidence of negligence, and as the defendant asked for a reversal only in case of error in law, the judgment should be affirmed.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; WALTER H. LEVY, Judge.

O'Brien, Morrison & Daingerfield and Hepburn Wilkins, for appellant. J. D. Sullivan and Henry McCrea, for respondent.

FOOTE, C. This is an action for "willfully, recklessly, and without care or caution. dashing huge car-loads of rock and earth, weighing many tons, around and against" certain piles supporting the plaintiff's house, whereby these supports of the house were forced from their position, and that structure was pitched into the water which surrounded it, the result being, as claimed, the damages for which the suit is brought. The answer denies these allegations, and claims that what was done by the defendant was justifiable in prosecuting certain street work under its contract with the city and county of San Francisco; that the injury resulted, not from carelessness or negligence, but from the dumping of rock and earth into the mud and water across a part of the waters of the bay of San Francisco,

in order to construct a street of said city, called "Railroad Avenue," and that this dumping of rock and earth onto the soft bottom of the bay, where the mud lay very deep, had the natural and inevitable effect to force out the mud from the sides of this avenue as it was being constructed of the rock and earth, so as to impinge upon the piles supporting the plaintiff's house, and without fault of the defendant, but as the unavoidable result of the prosecution of a lawful work, caused the damage to the plaintiff. It is evident that, according to the instructions of the court, the jury, under the facts, could not have found for the plaintiff except upon the idea that the defendant was negligent in prosecuting a lawful work. The defendant seems to be of the opinion that unless the appellate court shall declare that there is no evidence in the record to support this apparent view of the matter by the jury, or unless some different statement of the law than that laid down by the trial court shall be enunciated here, it would be useless and undesirable for it to have a reversal of the judgment and orders. In its opening brief it is announced that "we prefer an affirmance to a reversal involving a heavier verdict." They ask this court "to say, in its opinion deciding this cause, that Mr. Bellegarde has proved no case against appellant, or, at least, to lay down very unmistakably the law regarding the liability of street contractors. We prefer an affirmance rather than to be handed over to the tender mercies of another anti-corporation jury, without the protection of some such intimation from this court." We cannot say that the jury had no evidence on which to base their verdict, nor do we perceive any error in the law as laid down by the trial court, and given to the jury. It was as favorable as the defendant could ask. There is no necessity to enter into an abstract disquisition as to any further principles of law applicable to street contractors in some instances, perhaps, but inapplicable to the case in hand; and therefore we recommend that the judgment and orders be affirmed.

would cost a good deal of money to print and file the transcripts on appeal in all of said actions, and that it was useless to do so, as one case in each set of said cases would probably determine all of the rest; and proposed to affiant that the transcripts in two of the said cases only be printed and filed, and that the necessary points and argument be made and presented on them, so that they might be determinative of the rest, and expense be saved to each party litigant; that affiant thereupon agreed to the said proposition of said Wright upon the express condition, and no other, that the two cases in which the transcripts were to be printed and filed should be fully argued by said Wright in the regular course of business of this court, to the end that the decision in said cases should, as soon as might be, serve to advise the parties litigant as to their legal rights; that the stipulation relied upon on this motion by defendants was signed by affiant upon the aforesaid express condition, and upon no other; and that there was no consideration for affiant's entering into said stipulation save that of the benefit which would result to his clients from having the aforesaid two cases, in which the transcripts were to be filed, fully argued and decided on the mer. its; and affiant further says that said Wright, at the time of the signing of the said stipulation by affiant, well knew, and has always known, that affiant would not have signed the same except upon the aforesaid condition and consideration." These facts are practically conceded by the respondent, as in his affidavit in reply thereto he merely avers that "neither at the time said stipulations were signed by the attorneys for respondent, nor at any time previous thereto, was it ever stated to the appellants, or to this deponent, that said stipulations were to be, or were, giveu upon any condition or on any terms other than those expressed therein."

It is very evident from the foregoing history of the case, and from the affidavits offered in behalf of the respective parties, that the caly consideration for the stipulation given by the respondent was that the appellant should take such steps in the case of Hartshorne v. McMullen as would result in a decision of this court being rendered therein which should be a guide to the parties in determining the course to be pursued in the other cases. It was not necessary that the consideration should be expressed in the stipulation. A stipulation is only an agreement, and as in the case of any other agreement, not only can the consideration for making it be established outside of the agreement itself, but it can also be shown that such consideration has failed, and, when so shown, the stipulation cannot be invoked by the par ty through whom the failure has occurred. In the present case it is evident that the stipulation was for the sole benefit of the appellants. By obtaining it they were relieved from paying the costs of the appeal, as well as the expenses of printing the transcript. On the other hand, unless there should be some decision by this court in the case of Hartshorne v. McMullen by which a rule should be laid down for guid

ance in the other cases, the respondent gained nothing whatever, and was in reality deprived of advantages which but for the stipulation he would have enjoyed. The actions were brought for the purpose of removing a cloud from the title of the respective plaintiffs to certain land in San Francisco, caused by an adverse claim of the appellants thereto, and involved the same questions of law and fact. Judgment had been rendered in the court below in favor of the plaintiffs in the several actions, and the defendants had appealed from each of those judgments. By virtue of these appeals the operative effect of the judgments was suspended, and the adverse claim of the defendants left undetermined. The respondents were therefore deprived of the benefit of their judgment pending this appeal, and the cloud was left upon their title to the land involved in the action. The respondent would naturally be desirous of having the judgment become final at as early a day as possible, and without this stipulation would have realized this desire at the same time with the decision in the other case. The dismissal of the appeal before its presentation to this court, and the consequent failure on the part of the appellants to procure a decision of this court upon the matters in controversy, deprived the respondent of the benefit of having his judgment become final, and left it in the same condition in which it was at the time the stipulation was given, so that he failed to receive any of the benefit offered to him as the consideration for making the stipulation. We hold, therefore, that, inasmuch as the consideration for the stipulation has failed, it cannot be invoked as binding upon the respondent, and that he is entitled to have the appeal herein dismissed, and it is so ordered.

We concur: BEATTY, C. J., SHARPSTEIN, J., MCFARLAND, J., PATERSON, J., DE HAVEN, J.

HARTSHORNE v. MCMULLEN et al. (No. 14,358.) GOODBODY V. MERTENS et al. (No. 14,359.) PRESTON V. SAME. (No. 14,360.) CALIFORNIA DRY DOCK Co. v. SAME. (No. 14,361.) PROTESTANT EPISCOPAL OLD LADIES' HOME V. SAME. (No. 14,362.) HARTSHORNE V. SAME. (No. 14,363.) (Supreme Court of California. June 30, 1891.) In bank. Appeal from superior court, city and county of San Francisco.

PER CURIAM. Upon the authority of Raymond v. McMullen, (No. 14,357.) 27 Pac. Rep. 21, the appeals in the aboveentitled actions are dismissed.

(90 Cal. 15)

EGAN V. EGAN. (No. 13,352.) (Supreme Court of California. June 30, 1891.) JUDGMENT-AMENDMENT-EXCUSABLE NEGLECT.

Before the court's decision in a suit for divorce plaintiff entered into a stipulation to pay to defendant, whatever the decision might be, $1,000 in consideration of the release by defendant of all claims to plaintiff's property. Before judgment defendant, through her attorney, presented the stipulation to the judge in chambers,

or excusable neglect, provided that appli- | cation therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. Inasmuch as the motion in the present case was made more than six months after the judgment was entered, the court had no jurisdiction under this section of the Code to order the judgment to be amended. The appellant, however, contends that, inasmuch as every court has an inherent power to correct its records at any time so as to enable them to speak the truth, the court was authorized to grant the motion.

In the present case, however, it cannot be claimed that the judgment was taken against the defendant through any mistake, inadvertence, surprise, or excusable neglect. Before it was rendered her attorney had presented the stipulation to the judge, with the request that he give effect to it in the judgment, and, upon being informed by the judge that he could not do so, caused it to be signed by the plaintiff in person, persumably for the purpose of having a personal obligation against him for the amount which had been agreed upon as the sum to be paid by him in settlement of all property differences between him and the defendant. Moreover, the defendant, after the entry of the judgment, made a motion for a new trial in the action. Upon this motion she had an opportunity to present to the court any surprise or excusable neglect on her part as a ground for granting her a new trial; and, if the court had been satisfied that such was the fact, her motion would have been granted. So, too, if the court had rendered its decision without sufficiently providing for her support, or if in making its decision it had failed to give to the stipulation such weight as in her opinion it should have received, she could have presented these facts as other reasons why a new trial should have been granted. In making her motion it was incumbent upon her to present to the court all the grounds upon which she had a right to have it granted. After a motion for a new trial in a cause has been denied by the court, a party is not at liberty to make a second motion therefor, either upon any grounds on which the court has once denied it, or upon any grounds which might have been presented in the first instance. The doctrine of res adjudicata applies to a decision of a motion for a new trial as fully as to the judgment in the cause. Neither can a party under the. form of a motion to amend the judgment obtain relief which, if proper to be granted under any circum stances, should have been sought through a motion for a new trial. Courts have the power at all times to allow amend ments to judgments for the purpose of having the judgment as entered express that which was rendered, so that the record will contain the actual decision of the court; and such amendments can be made after the expiration of six months from the entry of the judgment. Where the clerk fails to enter judgment as it was pronounced, the court has always the power to correct the matter, and order the proper entry to be made. Clerical mis

prisions can be corrected at any time by an order of the court, but judicial errors can be remedied only through a motion for a new trial or on appeal Freem. Judgm. § 70; Forquer v. Forquer, 19 Ill. 68; Insurance Co. v. McCormick, 20 Wis. 265; Thompson v Thompson, 73 Wis. 84, 40 N. W. Rep. 671; McLean v. Stewart, 14 Hun, 472. It clearly appears in the present case that the matter contained in the amendment made by the order appealed from was not omitted from the judgment by reason of any neglect of the clerk in recording the same, but was intentionally excluded therefrom by the court itself at the time it rendered the judgment. If it should be admitted that the court ought to have included the provisions of this stipulation in its decree, its failure to do so was an error resulting either from a misconception of the law applicable to the facts before it, or from a failure to give sufficient consideration to those facts. In either case it was an error of law committed at the trial, which the defendant should have sought to remedy through her motion for a new trial. The order appealed from is reversed.

We concur: BEATTY, C. J.; GAROUTTE, J.

1. Where notice of a motion for a new trial is served and filed in due time, the court should either grant or deny it, though the judgment has been appealed from before the hearing on the motion; and, if the motion is dismissed, the appeal will be considered as an appeal from the judgment, and from an order denying a new trial.

2. Plaintiffs conveyed certain land to defendants, and took from them an undertaking conditioned that they should by a certain time furnish plaintiffs with Texas land-warrants for 3,200 acres of land. In an action on the undertaking for defendants' failure to furnish the warrants, the court found that, at and after the time for their delivery, warrants could have been readily obtained for $47.50 each, locatable on 640 acres. Held, that the measure of damages was the value of the warrrants, ($237.50,) and not the difference between the value of the land conveyed by plaintiffs to defendants, and the liens thereon, assumed by defendants as part of the purchase

money.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. V. COFFEY, Judge.

W H. H. Hart, for appellants. Wal. J. Tuska and P. J. Morgan, for respondents.

FOOTE, C. The complaint filed in this action is in this language: "Plaintiffs above named, complaining of defendants above named, for cause of complaint aver and allege: That on, to-wit, the 8th day of February, 1881, at, to-wit, the city and county of San Francisco, state of California, the said defendants, for a valid and valuable consideration, made and executed their undertaking in writing, a copy whereof is hereto annexed and made a part of this complaint; that in and by the terms of said undertaking it is stipulated and expressed that defendant Jones