find no error in the record for which a new trial should be ordered, and will therefore remand the case, with directions to enter the proper judgment upon the facts as found. Judgment and order reversed, with directions to the court below to enter judgment on the findings in favor of plaintiff for one-half of the value of the sheep as found, and interest on that amount from the date of the conversion, and for the costs of the trial in the court below.

We concur: SHARPSTEIN, J.; MCFARLAND, J.

(90 Cal. 22)

FIRST BAPTIST CHURCH OF SAN JOSÉ v. BRANHAM, Sheriff, et al. (No. 13,376.) (Supreme Court of California. June 30, 1891.) ACTIONS BY CORPORATION DE FACTO-REAL PARTY IN INTEREST.

1. The trustees of a corporation de facto can sue in its corporate name until its existence is questioned by a direct proceeding on information of the attorney general.

2. A corporation, to the trustees of which property is conveyed for its use and benefit, has sufficient interest to protect the same by suit in its own name.

Department 1. Appeal from superior court, Santa Clara County; F. E. SPEN. CER, Judge.

Laine & Hatch, for appellants. J. B. Lamar, for respondent.

GAROUTTE, J. The plaintiff, claiming to be the owner and in the possession of certain church property, consisting of real estate, the church building situate thereon, and personal property used therein and be longing thereto, brought this action to restrain the defendants from, interfering with said property, and to quiet its title thereto against said defendants other than the said Branham, sheriff of Santa Clara county. The defendants deny that the plaintiff is a corporation, and also deny that the plaintiff is seised and possessed of the property. Judgment in the trial court went for the plaintiff, and this is an appeal from an order denying defendants' motion for a new trial. The motion of respondent to dismiss the appeal is denied.

Appellant relies upon two propositions to sustain his position: First, that the plaintiff has no legal existence as a corporation; second, that it is not seised and possessed of the property involved in this litigation. As far as the present proceeding is concerned, it is immaterial whether the plaintiff is a corporation de jure or not. It is at least a corporation de facto, and as such its trustees can maintain suits in its corporate name until its existence is called in question by a direct proceeding upon information of the attorney general of the state. In People v. La Rue, 67 Cal. 530, 8 Pac. Rep. 84, the court says: "A corporation de facto may legally do and perform every act and thing which the same entity could do or perform were it a de jure corporation. As to all the world except the paramount au

As

thority under which it acts, and from which it receives its charter, it occupies the same position as though in all respects valid, and even as against the state, except in direct proceedings to arrest its usurpation of power, it is submitted its acts are to be treated as efficacious." sociation v. Chester, 55 Cal. 99; 4 Amer. & Eng. Enc. Law, p. 197; Tayl. Corp. §§ 145-153. It seems the plaintiff, under sanction of the court, has mortgaged this property for $4.000, which debt is still due and unpaid. Unquestionably the plaintiff could be sued in its corporate name to foreclose this mortgage,. and it is equally clear that it can maintain this suit in its corporate name to protect the property secured by the mortgage. As to the second proposition contended for by appellant,-that the plaintiff was not and is not seised and possessed of the property in dispute,-the trial court found that "plaintiff, ever since its incorporation, had been seised and possessed of said property, and that said property is under the management and control of a board of five trustees, and is used for the purposes of said corporation. That the defendants do not constitute the First Baptist Church of San José,' but are members thereof." Upon September 1, 1858, Marshall D. Young, by deed of grant, bargain, and sale, conveyed this realty to Bird, Gish, Easly, and Pierce, their heirs and assigns. At this time these last named parties were the trustees of the First Baptist Church of San José. In January, 1866, the plaintiff was incorporated, elected five trustees, and upon each succeeding January elected their successors. In September, 1869, Bird, Gish, and Easly, not as trustees, but as individuals, quitclaimed all their interest in the property to the trustees of plaintiff, naming them, and their successors in office. Shortly afterwards Pierce quitclaimed in the same manner. By the deed from Young the title to this property vested in these four parties, their heirs and assigns, not as trustees of plaintiff, but personally and individually; and their quitclaim deeds clearly divested them of all title they held. It was not necessary that their deed should be the joint act of all. They were not trustees of the church at this time. Neither was the property deeded to them in the capacity of trustees in the first instance. Counsel for appellants say that "if the deeds conveying this property had run to the trustees of the church without naming them, it is probable that the church, as a corporation, would have been the party to sue." It is highly improbable that the present trustees of the plaintiff were the grantees in the aforesaid quitclaim deeds, and appellant's concession works against him upon this contention. While the dry, naked, legal title to the property may not be in plaintiff, yetits trustees hold it in trust for the uses of plaintiff, and their ownership and possession is the ownership and possession of the plaintiff. We cannot understand how it is material to the interests of defendants in the action whether the plaintiff or its trustees is technically seised of the legal title to this realty. The plaintiff

collection of other assessments. The contention by the appellant that, by the terms of the condition contained in the ordinance it can be held liable for the payment of the assessment only to the city of San José, cannot be sustained. By accepting this franchise with the terms and conditions which were made a part thereof the defendant agreed that it would be "held" for the payment of its proportion of the cost of this improvement, and that the amount of this assessment might be collected in the manner provided for the collection of other street assessments, and should become a lien upon the road-bed, rolling stock, and franchise of said road. The only reasonable construction to be given to its agreement is that it would be "held" to the person entitled to make the collection. The manner of collecting other street assessments provided by the act of 1885, under which this improvement was made, is by a suit brought by the contractor in his own name, (St. 1885, § 12, p. 157;) and this mode was pursued in the present case.

The objections made by the appellant to the sufficiency of the proceedings taken by the city officers for the improvement of the street cannot be sustained. The notice of street work which was published by the superintendent contained the whole of the resolution for the improvement, and stated the date and fact of its passage. Inasmuch as there were no "further particulars" in the resolution, it would have been idle to make a formal reference thereto in the notice, and an omission to make such reference cannot be considered a defect. The other objections refer to the absence of certain averments from the complaint, and should have been presented by special demurrer. Mere defects in the mode of alleging a cause of action will not impair the validity of a judgment rendered after a trial upon its merits. The judgment is affirmed.

Weconcur: BEATTY, C. J.; GAROUTTE, J. (90 Cal. 41)

PEOPLE V. BARRY. (No. 20,757.) (Supreme Court of California. June 30, 1891.) ROBBERY-ASSAULT-EVIDENCE-INSTRUCTIONS.

On a trial for assault with intent to commit robbery, the prosecuting witness testified that he was assaulted on the street by defendant and two others, who, after taking from him a dog which he held by a chain, attempted to take money from his pocket; that an officer came and took hold of defendant, who at the time had his arm around witness' neck, the other assailants having fled. Defendant testified that he saw witness assaulted, and in trying to help him became entangled in the dog-chain. Held, that a verdict of guilty was right, and that an instruction to find guilty of simple assault was properly refused, as inapplicable.

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

J. D. Sullivan, for appellant. W. H. H. Hart, Atty. Gen., for the People.

FITZGERALD, C. The defendant was acused, by information, of an assault with

intent to commit robbery, and two previous convictions of petit larceny. Upon arraignment he pleaded not guilty to the charge, and admitted the prior convictions. He was then tried and found guilty as charged, and sentenced to imprisonment in the state-prison for the period of six years. The evidence upon which he was convicted is substantially as follows: On the night of March 2, 1890, between the hours of 7 and 8 o'clock, as the prosecuting witness, George Engert, was walking along Harrison street, in the city of San Francisco, he was violently seized by the defendant and two others, by whom he was severely beaten and choked. One of the parties making the assault forcibly took from his possession a dog which he held by a chain, while the other two, one of whom was the defendant, attempted, by means of force and violence, and against his will, to take from his possession the sum of two dollars in money, which he at the time bad in one of the pockets of his pants, that during the struggle the police officer whose attention was attracted to the place by Engert's cries for help came upon the scene, and took hold of the defendant, who at the time had his right arm around the neck of Engert; the others, on the approach of the officer, made good their escape by flight. The defendant, who was a witness in his own behalf, testified as follows: "I was coming down Harrison street on the night in question. I did not rob this man or attempt to rob him. I saw two men have hold of him and his cries made me go to him. He appeared to be fighting the other men. I tried to help him, and as I got close the dog-chain got around my legs, and I was trying to disengage myself when the policeman came up. The only error complained of, which we deem it necessary to notice, relates to the refusal of the court to instruct the jury, upon the request of the defendant, "that under the charge they might find him guilty of simple assault." We are of the opinion that this request was properly refused, for the reason that the evidence upon which he was convicted tended to show that he was guilty of the crime charged, or of no offense at all. The instruction asked was not applicable to the facts of the case, and, as the verdict is manifestly right on the evidence, we advise that the judgment and order be affirmed.

cient, specifications of error, in a suit in equity, in that the evidence is insufficient to sustain the judgment, which are not directed at any one of the numerous findings of fact on the various issues involved, but at all of them, at a verdict of the jury on a particular issue, adopted by the court, and the court's finding thereon, and at the judgment, are insufficient.

2. In a suit on a certain contract it is competent for plaintiff to show that he signed a written contract, introduced in evidence by defendant, through the misrepresentation of defendant, and supposing he was signing one which had been before drawn up in lead-pencil, the contract sued on being the latter, and its execution being denied by defendant in his answer.

3. A judgment in a suit in equity, entered through inadvertence by the clerk on a special advisory verdict, while other issues of fact remain to be determined by the court, may be set aside, and a new judgment entered after adoption of the special verdict by the court and its findings on the other issues.

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

Code Civil Proc. Cal. § 659, subd. 3, provides that, when a motion for a new trial is made on the ground that the evidence is insufficient to sustain the verdict or other decision, the statement on which the motion is made shall specify the particulars in which the evidence is alleged to be insufficient.

George Lezinsky, for appellants. Langhorne & Miller, for respondent.

FOOTE, C. This action is to foreclose a mechanic's lien, and the complaint sets forth two counts,-the first for the recovery of $163.72 unpaid under a contract for $525, and the second for recovery on a quantum meruit of a balance of $213.83 unpaid of the sum of $567.55. Attorney's fees for $100, and costs are also claimed. The defendant Ross, in his answer, among other things, admitted the contract for $525, and claimed to have paid all he owed thereunder, and alleged another contract to have been made between the parties for $325, which included all of the work done and performed as to the second cause of action stated; and further alleged that the whole sum due the plaintiff by defendant upon any ground was the sum of $109.50, of which tender of payment had been made to, and refused by, the plaintiff The question as to what amount was due for all the work done was by consent of both parties, upon a suggestion of the court, submitted to a jury, who upon that special issue found for the plaintiff in the sum of $289.15. By inadvertence the clerk entered up a judgment upon this verdict, when the other issues as to the existence of a mechanic's lien, amount of attorney's fees due, counter-claim set up by defendant, etc., remained undetermined by the court. Upon this being brought to its attention within a reasonable time the judgment was set aside, and evidence had as to the other matters involved. Thereupon the court adopted the advisory verdict of the jury, upon the specific matter therein involved, and made findings as to the other issues, upon which a decree and judgment was duly given, made, and entered, enforcing the lien, etc. From that

and an order denying a new trial this appeal is taken.

The first point made for a reversal of the judgment and order is that the evidence is insufficient "to sustain the judg ment." The reason given in the appellants' points and authorities being (at page 4) that each cause of action was based upon work performed in constructing a different story of the building; that the evidence did not show the extent of extra work done upon each story; and, as the defendant claims no extra work under the contract was to be allowed as to the work performed on one of the stories, the judgment cannot stand. The particulars in which the evidence was stated in the first specification of the insufficiency of the evidence to sustain "the verdict, findings, and judgment," does not contain anything which points to the question raised, and hence it was not fairly called to the attention of the trial court, and was therefore not to be considered. It nowhere appears therein that the evidence was alleged to be insufficient to show that any specific part of the work was unperformed, or that the value of any specific part thereof remained unproved. It is thus stated: "The evidence is insufficient to sustain the verdict, findings, or judgment for the reason that there is no testimony proving what was the value of said work, or that the same was ever performed as alleged in the amended complaint." This could only have reference to the whole work claimed to have been performed under both counts of the complaint, that performed by virtue of the contract; that under a quantum meruit; and that claimed for extra work under both contracts. The only other respect in which the evidence is specified to be insufficient is thus stated: "The evidence shows that the entire amount due to the plaintiff was not more than the sum of $850, and that all of such sum had been paid." This certainly does not intelligibly assert that the evidence was insufficient to show upon which story of the building the extra work was proved to have been done. The party moving for a new trial for insufficiency of evidence must specify in the statement the particulars wherein the evidence is alleged to be insufficient, in order that the trial court and counsel may have their attention directed to the particulars relied on by the moving party, to the end that the evidence bear ing on the specifications of error might be inserted in the statement and considered by the court. Eddelbuttel v. Durrell, 55 Cal. 279; Code Civil Proc. § 659, subd. 3. Besides, the specifications as to the insufficiency of the evidence to sustain the decision are not directed at any particular one of the numerous findings of fact upon the various issues involved here, but at all of them, at the verdict which was adopted by the court, and a finding made thereon, (the case being one in equity,) and at the judgment. This renders the specifications, as set out in the statement and relied on to show error, insufficient, under the rule declared by the appellate court of this state. Coveny v. Hale, 49 Cal. 555; Hayne, New Trial & App. § 150.

It is further contended that the court below erred in allowing the plaintiff to show that a certain written contract, introduced by defendant, was signed by the plaintiff through the misrepresentation of the defendant, and that the plaintiff had never intended to sign that contract, but supposed he was signing one which had before that been drawn up in lead pencil. The action was brought on a contract such as the lead-pencil draft contained; and the defendant, in the answer, denied the performance of the contract as sued on. When he introduced the written contract to show the real nature of the transaction, as he claimed, it was competent for the plaintiff, in support of the issue made, to show that in point of fact he had made no such contract as defendant had brought forward in evidence. One cannot be made to stand on a contract he never intended to make. If the defendant had sued the plaintiff, and sought to charge him on such a contract, it would certainly be competent, in defense, to show that the instrument was fraudulent. The evidence admitted was in effect to accomplish just such a purpose. The verdict rendered by the jury was, upon a special issue advisory to the court, submitted by consent of all the parties, and it was not error on the part of the court to instruct the jury as it did.

The setting aside of the judgment upon the verdict in an equity case, which judgment had been inadvertently entered by the clerk without judicial sanction, and when other issues of fact remained yet to be determined by the court, and the trial of those issues upon the evidence introduced, the adoption of the advisory verdict and finding thereon, and the other issues, was proper; and, as no error appears in the record, we advise that the judgment and order be affirmed.

We concur: BELCHER, C. C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and

order are affirmed.

(90 Cal. 72)

GILL V. DRIVER et al. (No. 13,204.) (Supreme Court of California. June 30, 1891.) APPEAL-FINDINGS OF FACT.

When ultimate facts are found which support the judgment appealed from, they cannot be overcome by the finding of probative facts tending to establish that the ultimate facts were found against the evidence.

Commissioners' decision. Department 2. Appeal from superior court, Mendocino county; R. MCGARVEY, Judge.

T. L. Carothers, for appellant. J. A. Cooper, for respondents.

BELCHER, C. C. This is an action to recover the possession of certain personal property or its value, alleged to be $1,000, and damages for its detention. The complaint is in the usual form in such cases. The defendants, by their answer, deny all the averments of the complaint, and allege that at the time of the commencement of the action, and at all times since, they were and have been the owners and entitled to the possession of the property

described in the complaint; that the value of the property was $1,000; and, while the defendants were the owners and entitled to the possession thereof, the plaintiff, under and by virtue of the proceedings in this case, unlawfully, and without their consent, took the property from their possession, and has ever since detained the same, to their damage in the sum of $10 per day. The case was tried by the court, and judgment given for the defendants, from which the plaintiff appeals, without any statement or bill of exceptions. The court found certain probative facts, and then found as follows: "(6) That plaintiff was not at the time of the commencement of this action the owner, nor entitled to the possession of the property described in the complaint, but that defendants were the owners thereof,and entitled to the possession of the same. (7) That defendants never took the said property from the possession of plaintiff at any time, but that plaintiff did at the time of the commencement of this action take the said propetry from the possession of the defendants without their consent, under a writ of replevin, and plaintiff ever since has withheld, and now withholds, the possession of said property from defendants. (8) That the value of the use of said property during the time plaintiff has so withheld it from defendants is the sum of $25, and defendants have been damaged by reason of the taking in the sum of $25, besides the value of the said property. (9) That the value of the property described in the complaint is the sum of $1,000. (10) That defendants never unlawfully took or withheld said property from plaintiff, or damaged him in any manner." The conclusions of law were that the defendants were entitled to judgment for a return of the property, and, if a return could not be had, for the judgment was so value thereof, and $25 damages; and entered. Only two points are made for a reversal of the judgment. They are-First, that the probative facts were wholly without the issues raised by the pleadings, and hence could not support the judgment; and, second, that if within the issues, they were insufficient to support the judgment. Conceding, without deciding, that these points are well taken, still they do not aid the appellant. Ultimate facts were found which do support the judgment; and they are not questioned, nor could they be, without bringing up the evidence in a statement or bill of exceptions. The rule has long been settled that," when the ultimate fact is found, no finding of probative facts which may tend to establish that the ultimate fact was found against the evidence, can overcome the finding of the ultimate fact." Smith v. Acker, 52 Cal. 217; Pio Pico v. Cuyas, 47 Cal. 174. We think the judgment should be affirmed, and so advise.