of the contracts were taken. The omis sion of these necessary findings is not, therefore, a ground for the reversal of the judgment. Himmelman v. Henry, 84 Cal. 104, 23 Pac. Rep. 1098; Winslow v. Gohransen, (Cal.) 26 Pac. Rep. 504. The opinion of HARRISON, J., in the latter case, applying the rule of Himmelman v. Henry, supra, in which opinion it was assumed that evidence had been given in relation to a matter upon which the findings were silent, is satisfactory, and leaves nothing to be added by way of argument in support of our conclusion that the judgment ought not to be reversed because of this defect in the findings. Judgment and order affirmed. We concur: STEIN, J. (90 Cal. 105) did not come upon the lands so occupied by the plaintiffs, or any portion thereof, by reason of any negligence on the part of the defendant whatever. We think the findings sufficient, and there is undoubtedly evidence to sustain them. But the plaintiffs contend that the act of defendant in setting fire to the stubble on his own lands, although an ordinary agricultural process, was unlawful, and therefore the defendant is liable for the natural consequences, irrespective of the question of negligence. This is supposed to be the effect of section 384 of the Penal Code, which is as follows: "Every person who willfully or negligently sets on fire, or causes or procures to be set on fire, any woods, prairies, grasses, or grain, on any lands, is MCFARLAND, J.; SHARP- guilty of a misdemeanor.' The section is GARNIER et al. v. PORTER. (No. 14.171.) One who burns stubble on his own land to prepare it for the plow does not commit an unlawful act within the meaning of Penal Code Cal. 384, providing that every person who willfully or negligently sets on fire any woods, prairies, or grasses on any lands is guilty of a misdemeanor; and, where due care and diligence are exercised in building the fire, and in endeavoring to control it after it has spread to adjoining land, there is no liability for the treble damages imposed by Pol. Code Cal. § 3344 upon one who negligently sets fire to his own woods, or who negligently permits it to extend beyond his own lands. Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; WALTER VAN DYKE, Judge. Action by Camile Garnier and Leon Garnier against George K. Porter for damages for setting out a fire. A jury was waived, and the cause tried to the court, which found for the defendant. Plaintiffs appeal. Affirmed. similar to section 142 of the act concerning crimes and punishments, passed April 16, 1850. That contained, however, a proviso excepting fires set by any one near his own farm for the necessary preservation thereof, after giving_notice to his neigh. bors. St. 1850, p. 247. In 1872 an act was passed making it a misdemeanor to set fire to any wooded country or forest belonging to the state or the United States. Section 3344 of the Political Code provides that any one negligently setting fire to his own woods, or negligently suffering any fire to extend beyond his own lands, is liable in treble damages to the party injured. These citations show that from the very beginning similar penal statutes have existed in this state; and yet it has always been the policy of the state to encourage settlement of the country, the clearing of lands, and reducing them to a condition in which they would be suitable for cultivation. We all know that fire has always been one of the most common and efficient agencies in clearing and subduing wild lands; and in this state burning stubble has been from the first an ordinary agricultural process in annually preparing lands for the plow. It is not Glassell, Smith & Patton, Smith, How-to be believed that it was intended by ard & Smith, and Smith, Winder & Smith, for appellants. Graves, O'Melveny & Shankland and Chapman & Hendrick, for respondent. TEMPLE, C. Appeal from judgment and order refusing plaintiffs a new trial. This action is for damages for the destruction of the hay, grasses, and pasture on 2,880 acres of land. It is charged that defendant "willfully and negligently kindled a fire on his land, and set fire to grasses growing thereon in the vicinity of the plaintiffs' land, and so negligently watched and tended the said fire that it spread over the immediate space and came to and spread over the plaintiffs' land, and consumed the hay, grass, and pasture," etc. Plaintiffs claim that they were damaged in the sum of $40,000, and that by reason of section 3344 of the Political Code they are entitled to judgment for treble that sum. The answer contained general denial. A jury having been waived, the action was tried by the court, which found for the defendant, specifically negativing all the material allegations of the - complaint, and also finding that "said fire these penal laws to prohibit common farming operations. When the law was first enacted the lands of this state were generally uninclosed and unoccupied save for grazing purposes. Frequent fires spread over the country, destroying timber, grass, and other property. Nor are such fires very uncommon now. Unquestionably the law was designed to prevent such calamities as far as possible. To construe the statute literally, so as to interfere with ordinary farming processes, would evidently be giving it an effect not intended. Nor is such construction necessary. If one sets fire to the weeds or brush on his own land, so as to prepare it for the plow, intending to limit and control the fire, and actually does so, he has not set fire to the prairies within the meaning of this statute. If, under such circumstances, the fire gets out of his control, he has set fire to the prairie, but not willfully, although it may be negligently. It is premised that such fire is set for a lawful purpose, and there can be no doubt that agriculture constitutes such lawful purpose. If, on the other hand, a hunter, or one designing to camp upon the land of another, were to set such fire, he would perhaps be civilly liable for the natural consequences of his act, although using the greatest diligence to control the fire he had set. And there is much in the statutes cited, besides this general presumption, which favors this conclusion. The act of 1872 (St. 1871-72, p. 96) implies that one may lawfully set a forest fire on his lands, and makes it a misdemeanor to allow such fire, though "made for a lawful purpose," to spread. Section 3344 of the Political Code, in pursuance of which plaintiffs claim the right to treble damages, seems to imply that the act of setting the fire was not criminal; for it makes the liability depend upon negligence in setting the fire, or in permitting its spread. In this case the defendant, when the fire got away from him and spread over the lands of the plaintiffs, was engaged in back firing, as the custom of the farmers in that vicinity is, preparatory to burning the stubble upon his own lands in order that it might be plowed, and the evidence is that such burning was necessary to fit the land for that purpose; that in fact it could not be plowed by the ordinary means without such preparation of the land. And there was evidence which tended to show due care in setting the fire, and due diligence in endeavoring to control it after it had spread from his own land. We think the judgment and order should be affirmed. We concur: BELCHER, C. C.; FITZGER. ALD, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed. (89 Cal. 636) HUNT V. MALDONADO. (No. 14,350.) (Supreme Court of California. June 27, 1891.) GUARDIANS-LIABILITY FOR ATTORNEY'S FEES. A guardian is primarily liable for a debt incurred in the performance of his duties upon his contract with an attorney for professional services, and no action can be maintained thereon against the ward. Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; WILLIAM P. WADE, Judge. Dooner & Burdett, for appellant. J. M. Damron, for respondent. TEMPLE, C. Appeal on judgment roll from judgment on demurrer. The demurrer was properly sustained. The action is to recover an attorney's fee for services rendered to the guardian of a minor in pursuance of a written contract. The action is against the minor. If the guardian made a valid contract with the attor ney, he may be held liable, and, if he pays it, and the probate court shall deem the expenditure reasonable and necessary to protect the interests of the ward, it may be allowed from the ward's estate. But it is an expense incurred by the guardian in the performance of his duties for which he is primarily liable. If an attorney's fee could ever be in the nature of a necessary for which the ward could contract, the complaint shows that the service here was not of that character. We notice that the transcript fails to show that the ward appeared by guardian, as required by section 372, Code Civil Proc. The judgment should be affirmed. We concur: BELCHER, C. C.; Vanclief, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed. (90 Cal. 75) COSGROVE V. FISK. (No. 13,364.) (Supreme Court of California. June 30, 1891.) MISJOINDER OF ACTIONS-PLEADING-AVERMENTS OF FRAUD. 1. Under Code Civil Proc. Cal. § 427, providing that only those causes of action can be joined in the same complaint which all belong to one only of the classes therein enumerated, claims for breach of covenants of warranty of lands, for costs expended in another suit between the parties, and for fraud, malice, and oppression, cannot be joined, since they do not all belong to any one of the enumerated classes. 2. A complaint alleging a cause of action based on fraud, which does not aver the facts constituting fraud, is demurrable. Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; JOHN F. FINN, Judge. Action by Ida M. Cosgrove against Asa Fisk. Demurrer sustained, and complaint dismissed. Affirmed. Code Civil Proc. Cal. § 427, provides that the plaintiff may unite several causes of action in the same complaint, where they all arise out of (1) contracts, express or implied; (2) claims to recover specific real property, with or without damage, for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; (3) claims to recover specific personal property, with or without damages, for the withholding thereof; (4) claims against a trustee by virtue of a contract, or by operation of law; (5) injuries to character; (6) injuries to person; (7) injuries to property. The causes of action so united must all belong to one only of these classes. J. C. Bates, for appellant. Daniel Titus, for respondent. FOOTE, C. The plaintiff, going by the name of Ida M. Carroll, when a certain agreement, marked "Exhibit A," to the amended complaint herein, was entered into, which affected certain of her rights and interests, brought this action against the defendant, Fisk, under her present name of Ida M. Cosgrove. The complaint was demurred to upon several grounds, and the demurrer sustained. Thereupon, the plaintiff declined to amend the complaint, leave having been given her to do so, judgment was made and entered that she take nothing by her action, and that the same be dismissed. From that this appeal is taken. The complaint contains but one count, and has united therein and mingled together a cause of action based upon the incurring by the plaintiff of $60 costs, etc., in having to bring suit against the defend ant to force him to comply with his agreement in writing to reconvey certain lands and premises to the plaintiff, which she had before that conveyed to him, which sum of money, claimed to be reasonably due the plaintiff by the defendant, it is alleged he refuses to pay; with a cause of action based upon the alleged fraud, malice, and oppression of the defendant, which omits to state the facts showing such fraud; and a cause of action arising from the breach of the defendant's covenant contained in an instrument (Exhibit B) made by him to the plaintiff, which covenant, it is claimed, binds him that the property he has conveyed is free and clear of all incumbrances and liens made, done, or suffered by him. It will readily be per. ceived, from an examination of the pleading objected to, that it mingles together several distinct causes of action, not all belonging to any one of the classes mentioned in section 427 of the Code of Civil Procedure, which rendered the complaint obnoxious to the demurrer, that several causes of action were improperly united. Section 430, Code Civil Proc. subd. 5; Canal Co. v. Kidd, 43 Cal. 184; White v. Cox, 46 Cal. 170; Watson v. Railroad Co., 41 Cal. 17. Furthermore, the cause of action, based upon the alleged fraud of the defendant, failed to aver the facts showing the fraud, and comes within the fourth ground of the demurrer, which is well taken. Payne v. Elliott, 54 Cal. 340; Pehrson v. Hewitt, 79 Cal. 598, 21 Pac. Rep. 950. For these rea sons we advise that the judgment be affirmed. Geo. M. Shaw, for appellants. Edw. C. Robinson and W. R. Davis, for respondents. FOOTE, C. The appeals here are from a judgment dismissing the action as to two of the defendants, E. C, Robinson and J. Robinson, for the want of prosecution thereof, and from an order refusing to set aside and vacate that judgment. It has been decided by the appellate court that it will not take jurisdiction of an appeal from an order refusing to set aside a judgment or order which is itself appealable. Railroad Co. v. McGrath, 74 Cal. 51, 15 Pac. Rep. 360; Larkin v. Larkin, 76 Cal. 323, 18 Pac. Rep. 396; Goyhinech v. Goyhinech, 80 Cal. 409, 410, 22 Pac. Rep. 175. The judgment of dismissal in this action was appealable, hence the appeal from the order just mentioned must be dismissed. From the record it appears that the action was instituted against the defendants here and one Hawkett on the 3d of November, 1883. On the 8th of July, 1885, the default of Hawkett was duly made and entered. After admission of service of summons the two defendants here concerned filed demurrers to the complaint on the 18th of July, 1885. On the 10th of December, 1888, a motion was made by them to dismiss the action, which, upon being heard upon affidavits on both sides, was granted, and a judgment of dismissal of the action made and entered. It was set up in the affidavits for the appellants that the delay in speeding the cause to a hearing upon the issue made by the demurrers to the complaint arose from an agreement by stipulation between the We concur: BELCHER, C. C.; FITZGER- parties, nade at the instance of one of the ALD, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed. (89 Cal. 638) KUBLI et al. v. HAWKETT et al. (No. 13,197.) (Supreme Court of California. June 29, 1891.) PRACTICE IN CIVIL CASES-DISMISSAL-LACHESAPPEALABLe Order. 1. It is not an abuse of discretion to dismiss a cause for want of prosecution where a demurrer to the complaint had been on file for nearly three years and a half without being called up for determination by the plaintiff, and the evidence as to a stipulation for delay is conflicting, and by the neglect of plaintiffs' counsel the attention of the court was not called to an order, previously entered by consent, continuing the cause for trial at a time to be agreed between counsel. 2. The supreme court will not entertain an appeal from an order refusing to vacate a judg. ment which is itself appealable. Commissioners' decision. Department 2. Appeal from superior court, Alameda county; W. E. GREENE, Judge. Action by Casper Kubli and others against A. W. Hawkett, E., C. Robinson, and J. Robinson. Judgment dismissing the action as to the two defendants Robinson. Plaintiffs appeal therefrom, and from an order refusing to vacate such judgment. The appeal from the order dismissed. Judgment affirmed. defendants, which delay at his instance this defendant denied in his affidavit, as also that any such stipulation existed. Upon this state of facts the trial court dismissed the action. It appears, however, that a minute order had been made in the action, which appeared upon the minutes of the court in volume 4, at page 587 thereof, as follows: "Upon motion and consent of respective counsel it is ordered that the above cause be continued and set for a time to be agreed upon by counsel, or upon five days' notice of either." But this order was never called to the attention of the court on the bearing of the motion to dismiss the action, but was made the basis of the motion to set aside the judgment of dismissal. The court below, as is readily perceived, decided the motion to dismiss, and ordered judgment upon the facts as then presented, and did not have the benefit of this order being called to its attention, which, by an inspection of the records of the court, might easily have been done by the attorney for the appellants here, especially since the affidavit of R. A. Redman had asserted the existence of a stipulation that such action as the minute order contemplated had been entered into by him with one of the appellants, an attorney of record in the case also. The point to be decided, then, is whether the trial court was guilty of an abuse of discretion in dismissing the action, upon the facts as then presented. The affidavits were conflicting in some respects, and the facts that could have been shown by the presentation of this minute order were not before it. The appellants' attorney could have found the order, and presented it. He knew that Redman's affidavit set up the existence of such a stipulation as would perhaps excuse the delay in speeding the cause to hearing. Should the appellants now be successful in maintaining the abuse of discretion of the trial court when they or their representative failed to inform the court of the existence of this order? As it seems to us, the neglect of the appellants was the cause of the court not being fully informed in the premises, and their contention should not prevail. But it is said that it was not the duty of the appellants to have urged the hearing of the demurrer; that this should have been done by the respondents, who filed it; and hence that the court was wrong in assuming that the laches of the appellants justified a dismissal of the action. The appellants brought the action. It would seem that upon them rested the burden of prosecuting it to a finality, and that, as a step in that direction, from the facts then appearing to the court, they should have taken measures to have the demurrers determined, so that the action could progress. Simmons v. Keller, 50 Cal. 39. So that we perceive no abuse of the discretion vested in the court as to this part of the transaction. Grigsby v. Napa Co., 36 Cal. 589. Again, it is argued, notwithstanding the admission that the decisions of the appellate court are to the contrary, that the trial court possesses no power to dismiss an action for the want of prosecution. As this has been declared to be within the power of the superior court, we do not concur in appellant's view. See Pardy v. Montgomery, 77 Cal. 327, 19 Pac. Rep. 530; Cowell v. Stuart, 69 Cal. 525-527, 11 Pac. Rep. 57. For these reasons we advise that the appeal from the order refusing to set aside the judgment be dismissed, and the judgment atfirmed. CARRIE V. CLOVERDALE BANKING & COMMERCIAL CO. (No. 13,201.) (Supreme Court of California. June 30, 1891.) PARTNERSHIP-ABSENCE OF PARTNER-UNAUTHOR IZED SALE-INSOLVENCY-PREFERENCES. 1. Under Civil Code Cal. § 2430, providing that a partner has no authority to do any act which would make it impossible to carry on the business unless his copartner has abandoned the business to him, or is incapable of acting, the fact that one partner is temporarily absent from the state does not render him incapable of acting, nor of itself constitute an abandonment of the business, and a sale by his copartner of a flock of sheep which constituted the entire property of the firm does not pass his interest therein. 2. In an action by the assignee in insolvency of the firm against the purchaser, such sale is valid as to the interest of the partner making it, when it was made in payment of a firm debt, and not fraudulent as to creditors. 3. A complaint, in an action by the assignee of an insolvent firm against a purchaser, alleging that a sale of firm property by one partner was void for preferences under Insolvent Act Cal. 1880, § 55, may be amended by adding a count alleging that it was also void, as having been made in excess of the authority of the partner. Appeal from superior court, Sonoma county; JOHN G. PRESSLEY, Judge. Action in trover by Carrie, as assignee of the insolvent firm of Scott & Staley, against the Cloverdale Banking & Commercial Company. Trial to the court. Judgment for plaintiff for the full amount claimed, The and defendant appeals. Reversed. complaint alleged that the sale by one of the partners to defendant of the entire property of the firm was in violation of Insolvent Act Cal. 1880, § 55, providing, among other things, that if a person, being insolvent or in contemplation of insolvency, within one month before the filing of a petition against him, with a view to give a preference to any creditor, makes any transfer of any part of his property to one having reason to believe such person to be insolvent, such transfer is void, and the assignee may recover the property, or its value, as assets of the insolvent. An amendment to the complaint alleged in another count that the sale had been made by one of the partners during the temporary absence from the state of the other, who had not abandoned the business to his copartner, and that the sale, covering all of the property, was invalid, under Civil Code Cal. § 2430, providing, among other things, that a partner, as such, has no authority to do any act which would make it impossible to carry on the ordinary business of the partnership, or to dispose of the whole of the property at once, unless it consists of merchandise, unless his copartners have wholly abandoned the business to him, or are incapable of acting. The court found that the sale was not void under section 55 of the insolvent act, and that the sale was in satisfaction of the firm indebtedness, and was not fraudulent as to credit ors. McGee & Barham, for appellant. A. B. Wade and W. E. McConnell, for respond ent. DE HAVEN, J. This is an action brought by the plaintiff, as assignee in insolvency of the firm of Scott & Staley, to recover the value of certain sheep, alleged in one count of the complaint to have been sold to defendant by said firm, in violation of section 55 of the insolvent act of this state. The second count of the complaint charges the sale of said sheep to have been made by only one of the partners, Staley, and that, as the sheep constituted the entire stock owned by the partnership, the sale made it impossible thereafter to carry on the ordinary business of said firm, and that the business of said firm had not been abandoned to the partner making this sale, nor was the surviving partner incapable of acting, and further alleges a conversion of the sheep by the defendant. This second cause of action was not in the original complaint, but was added by way of amendment during the trial. The court, in its finding of facts, negatived the first cause of action stated in the complaint, and found the above facts alleged in the second count. It also found the full value of the sheep to be $5,157, and gave judgment against the defendant for that sum. 1. The court did not err in permitting the complaint to be amended by adding thereto the second cause of action, and thus to attack the contract under which defendant claims, upon the grounds therein alleged as well as upon those stated in the original complaint. In both the original and amended complaints the plaintiff bases his right to maintain the action upon the alleged invalidity of the said contract of sale, and it was certainly proper for the court to allow the complaint to be so amended as to state all of the grounds upon which it is claimed that such contract is invalid. 2. The fact that Scott was temporarily absent from the state at the time of the sale did not render him incapable of acting, within the meaning of section 2430 of the Civil Code, nor of itself constitute an abandonment of the business of the firm to his copartner, and the sale of the sheep made to defendant by Staley was therefore in excess of his authority as a member of the firm of Scott & Staley, (Civil Code, § 2430,) and did not pass Scott's interest in the sheep. 3. The court below, in rendering judgment in favor of the plaintiff for the full value of the sheep, proceeded upon the theory that this sale was absolutely void, and that the defendant acquired no rights thereunder which it can assert against the plaintiff. We cannot concur in this view. The sale, though ineffectual to pass the title of Scott, was binding upon Staley, and transferred his interest in the sheep, and neither he nor the firm of Scott & Staley, represented by plaintiff, can maintain an action for their conversion upon the ground that Staley had exceeded his authority in making the sale. This is the rule which is laid down by the best-considered cases, in passing upon the rights of a copartnership growing out of an unauthorized sale of partnership property by one of its members in payment of his private indebtedness. Homer v. Wood, 11 Cush. 68; Farley v. Lovell, 103 Mass. 387; Craig v. Hulschizer, 34 N. J. Law, 364. Such an act of a partner is neither more nor less in excess of his authority as such than was the sale by Staley in this instance, and we see no reason why the remedy for the unauthorized act should not in this, as well as in that class of cases, be confined to the non-consenting partner. This must be so, because he is the only person wronged, and he only to the extent of the value of his interest in the property sold. A sale of partnership property made by one partner, under the circumstances found by the court in this case, is valid as against every person, except such non-consenting partner, or one who has succeeded to his right of action therefor. The creditors of the firm of Scott & Staley have no ground for com plaint which can be asserted through plaintiff as the successor of Scott, or as assignee of Scott & Staley, the court having found that the sale was made in satisfaction of an indebtedness of the firm, and that such sale was not fraudulent, nor made for the purpose of giving the defendant a fraudulent preference. The judgment in favor of plaintiff for the full value of the whole property cannot, therefore, be justified upon the claim that Scott's right, as a partner, to have the property applied to the payment of the firm debts was violated by such sale, and we know of no ground upon which the judgment can be sustained upon the facts as alleged and found. It cannot be assumed, without either allegation or proof, that Scott owned more than an undivided half of the sheep, or that upon a settlement of the accounts between himself and partner it would appear that he had a lien upon the other half, for a balance due him as a partner, and therefore a special interest therein to that extent. The sale was, as to Scott, a conversion of his interest in said property, and he had a right to so treat it as against the defendant claiming title to the whole property under it; or, in a proper action, he could have enforced against the whole property trans. ferred, or its value in the hands of defendant, a lien for any balance which might be found due him from his copartner upon a settlement of the partnership accounts, and, these being vested rights of action relating to property, passed to the plaintiff as assignee of the insolvent firm of Scott & Staley. Plaintiff does not ask for an accounting between the partners, for the purpose of ascertaining the interest of each in the property sold after the satisfaction of any partnership liens to which in equity it is subject, but has elected to sue for a conversion; and, we think, the amount of damages he is entitled to recover, in this form of action, is measured by the value of the undivided half of the sheep sold, without any reference to the state of the partnership accounts between Scott & Staley. This is the rule that was applied in the case of Walsh v. Adams, 3 Denio, 125. That was an action of trover, brought by one partner against a sheriff, who, on an execution against another member of the firm, had seized and sold the whole of certain property belonging to the partnership. It was contended for the defendant in that case that the plaintiff was only entitled to recover what the value of his interest in the property would appear to be on an accounting with his copartner. The trial court refused to so instruct the jury, and the supreme court of New York, on appeal, JEWETT, J., delivering the opinion of the court, affirmed this action, and said: "As to the question of damages, I entertain no doubt but that the general rule must control the question in this case. Under the rule the plaintiff was entitled to recover the value of his undivided share in the property converted by the defendant, irrespective of the question whether the partnership was or was not solvent, and without regard to the state of the partnership accounts." We |