against him by default. The court rendered judgment in favor of the defendant Hall; and the plaintiff, Nuttall, and the defendant Lovejoy both moved the court for a new trial. The plaintiff's motion was granted, and the motion of the defendant Lovejoy was denied. The defendant Lovejoy appealed from the judgment and from the order denying her motion for a new trial, and the defendant Hall appealed from the order granting plaintiff a new trial, but did not appeal from the judgment.

The defendant Lovejoy's application to purchase having been filed before segregation by the United States to the state, no right attached by reason of such application, nor by reason of the subsequent ap proval and certificate of purchase issued to her. Buchanan v. Nagle, (Cal.) 26 Pac. Rep. 512. The court, therefore, properly decided against her claim, and, as no errors of law occurred at the trial, her motion for a new trial was properly denied. Her appeal from the judgment is also without merit. She alleged in her answer that the lands were unfit for cultivation. The defendant Hall alleged the same thing. She is the only party who has appealed from the judgment. If the findings show that the land is unfit for cultivation, she cannot complain; it is a finding in her favor. If they show that the lands are unfit for cultivation, it is a finding outside of the issues between her and the defendant Hall, who has not appealed from the judgment. Estate of Doyle, 73 Cal. 564, 15 Pac. Rep. 125; Bulwer Con. Min. Co. v. Standard Con. Min. Co., 83 Cal. 589, 23 Pac. Rep. 1102. In any event, a finding as to the character of the land could in no way affect the right of the defendant Lovejoy, because, as stated above, no right could attach by reason of an application filed before the lands were segregated.

We think the court did not err in granting the plaintiff's motion for a new trial. The plaintiff alleged that he was an act ual settler on the land, and that said land was suitable for cultivation. The findings of the court on the issue as to the character of the land are uncertain and contradictory. The court found that at all time stated the land had been, “and yet is, subject to periodical overflow, and is not suitable for cultivation;" but afterwards found that the land was formerly a portion of the bed of Tulare lake, and "was first uncovered by the receding waters of said lake in the summer of 1883, and the waters of said lake rose again and covered said land in the spring of 1884; that ever since the fall of 1884 said waters have been gradually receding, and in the fall of 1887 said land was again wholly uncovered, and since said time such waters have so receded that at the time of this trial they were at least four miles from any portion of said lands; that

* # #

the said land is level, and of good quality, of sandy loam, and can be readily plowed, seeded, and cultivated by the ordinary processes of tillage; that the plaintiff Nuttall, plowed a few acres of said land in March, 1888, and sowed the same with barley and alfalfa; that the land was so

dry at that time that for lack of moisture but a small portion of the seed then sowed by him germinated, and that portion which did so germinate soon died for lack of moisture, there having been no rain, after said seeds were sown, sufficient to wet up the ground where they were sown; that more than one-half of said seed remained in the ground where sown until the rains came in the month of November, 1888, when such seeds germinated, and the alfalfa and barley plants coming therefrom are now growing on said land; that the country surrounding said lake was formerly used as a vast pasture for the raising of stock, but of recent years it has been entered upon by persons who have broken it up and plowed and farmed the land, and constructed numerous irrigating ditches for the purpose of taking water from the several streams herein before named, and conducting it upon their said lands for the purposes of irrigation, and by such means a great quantity of the waters of said streams is being each year taken therefrom for said purpose and conducted upon said lands; that in the year 1862, said year being an exceptionally wet season, the waters of said lake suddenly raised to a great height; and again in the year 1867, said year being an exceptionally wet season, the waters of said lake again suddenly raised to a great height, and, should a season again occur such as either the season of 1362 or the season of 1867, the land mentioned in finding 1 would be entirely covered by the waters of said lake; and the numerous ditches leading out of said rivers and creeks, and large body of land used for agricultural purposes, and irrigated by waters drawn from said streams, would not prevent the sudden rise of said lake and the overflow of said land by the waters thereof." While the finding of the court that the land is unsuitable for cultivation is the finding of an ultimate fact, it is inconsistent with the other facts found and quoted above; and for this reason the court below properly set aside the tindings and granted a new trial.

the

It is claimed that the plaintiff was not entitled to a new trial on the ground that the decision is "against law," and in support of his contention appellant Hall cites cases holding that a new trial cannot be granted upon the ground that the conclusions of law are not supported by the findings of fact. This may be conceded. The question here is not whether the court below erred in its conclusions of law, but whether the findings fail to dispose of some material issue. As between the plaintiff and the defendant Hail, the question as to the character of the landwhether it was suitable or unsuitable for cultivation-was a material issue. That issue has not been disposed of, because the findings are so inconsistent and contradictory that it is impossible to tell therefrom whether the land is or is not suitable for cultivation. Where the findings do not determine all the issues raised by the pleadings with respect to which evidence was introduced, the decision is against law, and a new trial may be granted on that ground. Knight v.

Roche, 56 Cal. 15; Hayne, New Trials & App. § 99. The judgment and the orders are affirmed.

We concur: MCFARLAND, J.; HARRISON, J.; SHARPSTEIN, J.; DE HAVEN, J.

(90 Cal. 157)

BARNHART V. FULKERTH et al. (No. 13,682.)

(Supreme Court of California. July 2, 1891.) ESTOPPEL-PLEADING-REPLEVIN.

In an action of replevin against a sheriff, the defendant justified under an execution against a third person, and pleaded that before levying on the goods in plaintiff's possession plaintiff stated to him, in answer to his inquiries, that the goods belonged to the execution debtor, and that plaintiff held possession as pledgee. The answer further stated "that the levy was made in sole reliance upon the statement of plaintiff." Held, that the answer sufficiently pleaded an estoppel, under Code Civil Proc. Cal. § 1962, subd. 3, which provides that, "whenever a party has deliberately led another to believe a particular thing true, and to act upon such belief, he cannot be permitted to falsify it.”

Commissioners' decision. In bank. Appeal from superior court, Stanislaus county; WILLIAM O. MINOR, Judge.

Wright & Hazen, for appellant. W. E. Turner, for respondents.

FITZGERALD, C. This is an action brought by plaintiff against the defendants to recover the possession of 4,255 bags of wheat, alleged to have been wrongfully and unlawfully taken by the defendants from the possession of plaintiff, or for the sum of $8,260, the alleged value thereof, in case delivery cannot be had, and for the further sum of $2,000 as damages for the detention thereof. The answer specifically denies the material allegations of the complaint, and justifies under writs of attachment and execution. Plaintiff demurred generally to the answer, and separately, upon the same ground, to that part of it setting up matter by way of an affirmative defense. The demurrer was overruled, and the case tried by the court, without a jury, and judgment rendered in favor of plaintiff in the sum of $2,540, and costs. This appeal is taken by plaintiff, on the judgment roll alone, from that part of the judgment which denies to him a portion of the relief claimed and demanded by him in this action. The case has been here before on appeal, and is reported in 73 Cal. 526, 15 Par. Rep. 89. All the questions necessary to the decision of the case were then decided, and are now the law of the case, with the single exception of the matter by way of estoppel in pais, pleaded for the first time in the answer as amended, after the case was reversed on the former appeal, but which was sought to be proved and was relied upon as a defense at the previous trial. As to whether the matter set up by way of estoppel was necessary to be pleaded, we are not called upon, in view of the amended answer, to decide. But this court on the former appeal so considered and disposed of the questions of estoppel raised by the evidence in the case, and relied on as matters of defense,

Im

against the objections made and urged by plaintiff, upon the ground that such defense was not available because it was not set up in the answer. The facts necessary for a proper understanding of the case, as now presented for decision, are substantially as follows: In November, 1878, H. O. Matthews and his wife commenced an action in the district court of Stanislaus county, against one J. T. Davis, to recover on his promissory note made in their favor for $3,500. After the filing of the complaint a writ of attachment was issued at their instance against the property of Davis, and placed in the hands of the defendant Fulkerth, the sheriff of the county, who executed the same by levying upon and taking into his possession, as the property of Davis, the wheat in controversy. This wheat was, at the time of the levy, in the possession of the plaintiff, Barnhart, as pledgee, to whom it had been previously delivered, by transfer and indorsement of the warehouse receipt by Davis, as collateral security for the payment of the sum of $2,500 and interest, theretofore loaned by him to Davis. mediately upon the service by the sheriff of a copy of the attachment and the notice in writing, usual in such cases, upon the plaintiff, Barnhart, ne, Barnhart, in answer thereto and in response to inquiries made at the time by the sheriff and the attorney of Matthews and wife, claimed and represented to them that he held possession of the wheat as pledgee of Davis; that Davis was the owner thereof; and that all he wanted was his money. The object of this inquiry, as the plaintiff knew, and in response to which he made the foregoing statement, was for the purpose of ascertaining whether Davis was the owner of the wheat in question, and whether it was subject to be levied upon as such. The sheriff then immediately tendered to plaintiff, in manner and form as required by law, the sum of $2,600, which sum was in excess of the amount due. This, after admitting its sufficiency. Barnhart refused to accept. The sheriff then deposited the money with the county treasurer to the order of plaintiff, and notified him to that effect, but plaintiff gave bim notice that he would not accept it. The sheriff and the attorney of Matthews and wife having no knowledge differing from the representations and information given by the plaintiff in relation to the ownership of the wheat in question, and believing and relying solely thereon, as plaintiff knew they would, the sheriff then, in obedience to the instructions of the attorney of Matthews and wife, given after the money tendered was deposited with the county treasurer to plaintiff's order, and immediately preceding the levy, executed the writ of attachment by levying upon and taking into his possession, as the property of Davis, the wheat in controversy, which he afterwards placed in the possession of his co defendant, Perley, for the safe-keeping and protection thereof. After this action was commenced, and during the detention of the property in question by the sheriff under the writ of attachment, Matthews and wife recovered judgment against Davis for

the amount claimed, with interest and costs, and thereupon execution was duly issued and levied by the defendant Fulkerth, as sheriff, upon this wheat, as the property of Davis, and he sold 250 tons of it, leaving 25 tons which he released from execution, notifying plaintiff at the time thereof. After the sale, defendant Fulkerth again tendered to plaintiff the full amount due from Davis, which he refused to accept. The defendant Fulkerth then withdrew the deposit from the county treasurer, and placed it in a solvent bank, but in his own name, where he has ever since kept it, with the full knowledge of the plaintiff, and being at all times ready and willing to pay it over, with interest up to the date of the tender. It further appears that the plaintiff applied for and received from Davis other security which was amply sufficient to pay Davis' indebtedness to him, and that the wheat which is the subject of this action was not the property of Davis at the time he delivered the possession of it to plaintiff.

These are substantially the facts as shown by the findings, and, as none of the evidence taken at the trial was brought up by the record, they must be presumed to be supported by the evidence. The questions in relation to the ownership of the grain and the sufficiency of the tender were settled adversely to plaintiff by the decision of this court on the former appeal, so that they are not now proper subjects for discussion. This case is therefore narrowed down to the question whether the plaintiff is estopped from denying the truth of the statements intentionally and deliberately made by him to the defendant Fulkerth and the attorney of the attaching creditors, which he led them to believe were true, and upon which belief they acted solely in making the levy referred to It is contended by appellant that the demurrer should have been sustained on the ground that the matter of estoppel relied on as a defense is not sufficiently pleaded in the answer; and, further, that neither the pleadings nor findings are sufficient to support the judg ment based upon an estoppel. Section 1962, subd. 3, Code Civil Proc., provides: "Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a par. ticular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it." Conceding, but not deciding, that this estoppel is not embraced within that class of estoppels in pais necessary to be pleaded, we are of opinion that the answer is in all respects sufficient, and that the matter pleaded by way of estoppel meets fully the requirements of the above section of the Code of Civil Procedure. We think the demurrer was properly overruled. Mr. Jus tice THORNTON, who delivered the former opinion in this case, uses the following language with reference to the question of estoppel involved here: "We do not think this estoppel made out, for the reason that it does not appear that the levy was made in sole reliance upon the statements made by Barnhart." The answer avers, among

other things, by way of estoppel, and the court so finds, "that the levy was made in sole reliance upon the statement of the plaintiff, Barnhart." As the estoppel herein was sufficiently pleaded, and the findings follow and support the allegations of the pleadings, we are of the opinion that the plaintiff is estopped from denying the truth of the statements out of. which this action arose, and which were made by him at the time and under the circumstances referred to; also from setting up title to the property in question in any one but Davis; and, further, that the judgment based thereon, and upon which this appeal is taken, should be affirmed, and we so advise.

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

PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.

(90 Cal. 174)

PEOPLE V. BROOKS. (No. 20,772.) (Supreme Court of California. July 6, 1891.) CRIMINAL LAW-NEW TRIAL-DISCRETION OF TRIAL

COURT.

A motion for a new trial in a criminal case is largely addressed to the discretion of the trial court; and a motion granted upon the ground that the verdict is not sustained by the evidence will not be reversed, except where there is no evidence which conflicts with that upon which the verdict rests.

In bank. Appeal from superior court, Los Angeles county; J. W. MCKINLEY, Judge.

W. H. H. Hart, Atty. Gen., and Frank P. Kelly, Dist. Atty., for the People. C. C. Stephens and J. A. Donnell, for respondent.

PER CURIAM. A motion for a new trial in a criminal cause is very largely addressed to the discretion of the court before which the trial was had; and, when one of the grounds upon which it is asked is that the verdict is contrary to the evidence given in the cause, the action of that court in granting the motion will not be reversed by this court, unless the record clearly shows that there was no evidence which conflicted with that upon which the verdict rested. In the present case the action of the court in granting the motion is fully sustained by the matters contained in the bill of exceptions, both upon the foregoing ground, and also upon the ground of newly-discovered evidence contained in the affidavits offered upon the motion on the part of the defendant. The order is affirmed.

(90 Cal. 175)

YOUNG V. AGUIRRE. (No. 14,036.) (Supreme Court of California. July 10, 1891.) APPEAL-SUFFICIENCY OF EVIDENCE.

Where the evidence is sufficient to support the verdict the judgment will not be disturbed. Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; W. H. CLARK, Judge.

Action by W. H. Young against M. G. Aguirre to recover possession of personal

property. Verdict and judgment for plaintiff, and new trial denied. Defendant appeals. Affirmed.

John Haynes and Jesse F. Waterman, for appellant. H. H. Appel, for respondent.

VANCLIEF, C. The action is for the recovery of the possession of personal property alleged to have been wrongfully tak en from the plaintiff by the defendant. The defendant, being sheriff, justifies the taking of the property by virtue of a writ of attachment against one Cooke, alleging that the property belonged to Cooke, and was subject to the attachment. Trial by jury, verdict and judgment for plaintiff. Defendant appeals from the judgment and from an order denying his motion for a new trial. The plaintiff claims the property by purchase from Cooke, made 40 days prior to the attachment. The appellant makes two points: (1) That the evidence does not justify the verdict of the jury, in that it fails to show that the alleged transfer of the property from Cooke to plaintiff was accompanied by an immediate delivery, and followed by an actual and continued change of possession; and (2) that the verdict is against law, for the reason that the jury must have disregarded an instruction of the court as follows: "If you find that there was no actual, open, unequivocal change of possession, carrying with it the usual marks and indications of ownership, manifested by such outward signs as would render it evident to the world that the possession of Cooke had wholly ceased, and that the claims of the vendee were absolute, then you shall find for the defendant." The two points are substantially the same, and present only the single question: Does the evidence justify a finding that the transfer was accompanied by an immediate delivery, and followed by an actual and continued change of possession? This question should be answered affirmatively, and appellant's claim to the contrary is not sufficiently plausible to justify a statement of the evidence here. I think the judgment and order should be affirmed.

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

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

(2 Wash. St. 508)

HANSON et al. v. TOMPKINS. (Supreme Court of Washington. July 1, 1891.) VENDOR AND Vendee-MISREPRESENTATIONS-ACTION ON DEBT NOT DUE-RECORD ON APPEAL.

1. In an action on a note given in part payment of a tract of land, which the vendor represented to contain 36.50 acres, but which in fact contained only 26.50 acres, he can recover only for the actual acreage; and it is immaterial whether the representation was made knowingly or by mistake.

2. Where, in an action on a note not due, the complaint alleges that defendants were about to leave the state without making provisions for its payment, and the allegation is denied by answer, a failure to prove the allegation is fatal to a recovery.

3. The supreme court will not consider a state ment of facts which has not been certified to by the trial judge.

Error to superior court, Snohomish county.

Action by George E. Tompkins against Ole Hanson on a note. Judgment for plaintiff. Defendant appealed. Reversed.

W. P. Bell, L. F. Hart, and Andrews & Barnes, for plaintiff in error. Craddock & Miller, for defendant in error.

DUNBAR, J. This was an action brought upon a promissory note for $350 not yet due, and for $50 attorney's fee, with an allegation that defendants were about to remove from the state of Washington and the United States, refusing to make arrangement for securing the payment of said debt, with prayer for judgment, and for the issuance of a writ of attachment. Affidavit for attachment was filed. The answer admits the execution of the note, and rlleges want of consideration; alleges the fact to be that plaintiff sold defendant a certain tract of land for $1,350, $1,000 of which was paid down, and the note for $350 was given for the balance of the purchase price of said land; that the number of acres bought was understood to be 40, at an agreed price of $33.75 per acre. This land was composed of lot No. 2, and a small portion of the N. W. 4 of section 22, township 29 N., of range 5 E. of Willam. ette meridian. That plaintiff, intending to cheat the defendant and co-defendant, falsely and fraudulently represented to them that said lot 2 contained 36% acres, when in truth and in fact it contained but 26% acres; and that, wholly and solely relying on the said fraudulent and false representations of plaintiff, defendant and codefendant, believing there were 40 acres in said tract of land, signed the said note for $350. That the plaintiff agreed with and promised defendant, on the 12th day of December, 1889, to deed to them a sufficient amount of land off of the east side of the north-west quarter of said section 22 to make, when added to lot 2, 40 acres. That in the following February, 1890, the defendant first learned that lot 2 contained but 26 acres of land, whereupon they went to plaintiff, aud offered and demanded of him to deed them 10 acres more land off the east side of the north-west quarter of the north-west quarter of said section 22, or to rescind said contract; and demanded of him their money, viz., $1,000, and their note, for which they offered to deed said land back to plaintiff; and plaintiff refused to return to defendants their note and money, or any part thereof. All of the allegations in the answer were denied in the reply, and on these issues the cause was tried Other matters were alleged in the answer, but their consideration is not necessary to the determination of this cause. Two statements of fact came up with the record, but this court can only consider the statement certified to by the trial judge. Both plaintiff and defendant testified that it was the intention to convey 40 acres of land; the real contention being whether or not 40 acres of land had really been conveyed. There seems little, if any, doubt from the testimony that

lot 2, instead of containing 36% acres, actually contained only 26% acres.

Several instructions were presented and requested by defendants, which, we think, correctly stated the law; but, as the reverse of such instructions was given by the court, we will notice it. Among other instructions the court gave the following: "If you should find that as a matter of fact said plaintiff did represent said tract to contain 36.50 acres when as a matter of fact it only contained 26.50 acres, you must still find a verdict for the plaintiff, unless you further find by a prepond erance of the evidence that the plaintiff knew at the time he made such representations that the same were false, and made them with the intent thereby to deceive the defendants, if the mistake (if you find there was a mistake) was a mutual one, and innocently made by the plaintiff, he cannot be charged therefor in this action. This instruction was plainly erroneous. If the defendants relied upon the representations of the plaintiff, and were led to believe by such representations that lot 2 contained 36% acres, when in fact it only contained 26 acres, and were induced by such representations to purchase said lot as a lot of 36 acres, it makes no difference whether plaintiff knew such representations to be false or not, he is liable. If he knew the lot did not contain 36% acres, and represented to defendants that it did, he would be guilty of fraud and deceit; but if he did not know it, and believed that the representations he made were true, and defendants, acting upon such representations, were damaged because it eventuated that they were not true, the liability of the plaintiff would be the same. In neither case will he be allowed to retain the benefit flowing from his misrepresentation. Mr. Justice Story thus states the rule: "Whether a party thus misrepresenting a material fact knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial; for the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false." 1Story, Eq. Jur. § 193, and note. See, also, Page v. Bent, 2 Metc. (Mass.) 371; Stone v. Denny, 4 Metc. (Mass.) 151; Milliken v. Thorndike, 103 Mass. 382; Bennett v. Judson, 21 N. Y. 238; Litchfield v. Hutchinson, 117 Mass. 195. In fact, this view of the law is so well established that we think it not necessary to comment further upon it.

There is another phase of this case which is fatal to the judgment. This action was brought upon an alleged debt not yet due. The complaint alleged that the defendants were about to depart from the state without making any provision for the payment of the note, and also that the defendants had disposed of their property with intent to delay and defraud their creditors. These allegations were denied by the answer, and no proof was offered at the trial in support of them. These are material alle. gations to the complaint, and the facts therein set forth must be proven, like any other fact, to authorize judgment. See Cox v. Dawson, 26 Pac. Rep. 973, (decided

by this court at this term.) Judgment is reversed, and the cause remanded to the lower court, with instructions to proceed in accordance with this opinion.

ANDERS, C. J., and SCOTT, STILES, and HOYT, JJ., concur.

(2 Wash. St. 451)

SEATTLE LAND CO. v. DAY. (Supreme Court of Washington. June 17, 1891.) BROKER-COMMISSION-EVIDENCE.

1. Where a broker agrees to sell land upon condition that the owner shall first make $500 out of the sale, the broker to have the rest of the profit as his commission, he is not entitled to commission for merely finding a purchaser, where the sale to such purchaser falls through on account of a defect in the title.

2. Where a party is testifying as to a conver sation between himself and the opposite party, he may relate a statement he made in such conver sation as to the provisions of a certain written instrument, especially where testimony has been introduced tending to show that such instrument was lost.

Appeal from superior court, King coun ty, T. J. HUMES, Judge.

V. H. Fabin and Geo. D. Blake, for ap pellant. McClure, Wheeler & Thompson, for appellee.

He

SCOTT, J. Appellant brought this suit to recover $1,500 from appellee, as a commission due for finding a purchaser for certain real estate. The controversy was in relation to the contract between the parties to the action. Appellant claimed that appellee listed the property in the ordinary manner with it for sale, and agreed to pay appellant such sum as it could sell it for in excess of $16,500; that it found a purchaser ready and willing to buy the property, and pay $18,000 for it, but that upon investigation the title proved to be defective, by reason whereof the sale was prevented. Appellee disputed that the contract was as claimed by appellant, and contended that the agree ment was in the nature of a joint speculation between the parties, by the terms of which appellant was to receive nothing unless the sale was actually made. also insisted that the title was not defective, but admitted that the party procured by appellant refused to take the property on account of what he alleged and was advised was a defect therein. Appellant claimed, further, that if the title was not defective, and if the contract was as claimed by appellee, it was his duty to have entered into a contract with the proposed purchaser at the first opportunity, thereby binding him so that he would have been compelled to take the property, and as appellce did not do so, appellant was entitled to recover. The jury found a verdict for the defendant. Appellant claims that there was no evidence to sustain this verdict, and that it was entitled to recover upon appellee's own showing. It seems that appellee had only a bond for a deed to the property, which was about to expire. This, however, was not the defect complained of. C. B. Holman, appellant's secretary, and who was acting for appellant in the premises, said in his testimony that, in making