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were such as to require the conclusion that there was no complete remedy at law.

[9] There is absolutely nothing in Glock v. Howard etc. Co., 123 Cal. 1, or Johnston v. Blanchard, 16 Cal. App. 321, in conflict with the views we have expressed. These cases simply recognize the rule prescribed in this state by section 3389 of the Civil Code, that a contract otherwise proper to be specifically enforced will be so enforced, notwithstanding it contains a provision declaring the amount which shall be presumed to be the amount of damage sustained by reason of a breach, or one for a penalty in the event of non-performance. Where this is the situation, if the circumstances are such as to make the case a proper one for specific performance, the party may waive his stipulated damages and maintain his action in equity. But the rule does not render a contract one as to which specific performance will be decreed simply because it contains a provision for liquidated damages, which ap pears to be the logical effect of plaintiff's contention.

[10] Surely there can be no doubt upon the question whether plaintiff had a full and adequate remedy at law. It is to be presumed that plaintiff has stated his case in his complaint as favorably to himself as he can. As the same is described therein, there was nothing extraordinary or peculiar in the nature of the service to be rendered by plaintiff for deceased. At best he was the assistant manager of the hotel business of deceased conducted at the Western Hotel in Sacramento, and was a faithful and efficient employee of deceased, having his absolute confidence. The services that he was rendering were services that could be, and in the contemplation of the parties were to be, compensated in money. He was rendering those services at a stipulated rate of compensation in money. Being offered similar employment at various times by others, at a greater compensation, deceased asked him to continue in his employ, performing the same service that he had hitherto performed, at the same compensation, agreeing with him that if he would so remain as long as he, deceased, continued in such hotel business, he, deceased, would make a bequest to him in his will of $50,000. He was to receive $50,000 in money from the estate of deceased if the latter performed his contract. An ordinary action at law for breach of the contract would bring him the very thing to which he is entitled under the allegations of his com plaint-afford him full and adequate relief. In such an action, the measure of damages would have been the value of the property agreed to be bequeathed, for that was the amount in which he was damaged by the breach. (See 40 Cyc. 1073.) Attorneys for respondents pertinently ask, “Is a decree in equity ordering payment of a sum of money from the estate to plaintiff any more perfect and complete justice to him than a common law judgment in his favor and against the estate for a like sum"? A clearer case of adequacy of remedy at law could not be made than that presented here. The situation is such as to absolutely preclude resort to equity.

It thus appears that the complaint does not state facts sufficient to entitle plaintiff to any relief, legal or equitable. It fails

to show him entitled to any equitable relief for the reason we have just discussed. It fails to show him entitled to recover at law, in view of the want of an allegation showing presentation of his claim to the executors and judge for allowance. [11] It is true, as said by counsel for plaintiff, that monetary relief will be given as an alternative for the specific performance to which a plaintiff is really entitled, where, through no fault of his, specific performance cannot be decreed. But manifestly that rule has no application here, where plaintiff has no right to specific performance. It is only where the beneficiary of a promise to make a will has a right to specific performance that the property of the deceased in the hands of the heirs, devisees and legatees is regarded as impressed with a trust in his favor, and no monetary relief can be awarded here, as suggested, upon the theory of breach of trust.

For the reasons we have stated, the complaint fails to state facts sufficient to constitute a cause of action, and it is unnecessary to discuss other reasons urged by defendants.

In his closing brief, filed in lieu of oral argument, counsel for plaintiff for the first time contends that the lower court was guilty of an abuse of discretion in "refusing leave to amend" the complaint, after demurrer sustained. The transcript shows simply that an order was made July 19, 1913, sustaining the demurrer without leave to plaintiff to amend, and that on December 20, 1913, judgment was given dismissing the action. There is nothing to show or even intimate that plaintiff ever asked leave to amend or that he desired to amend. [12] It appears to be the settled rule in this state that it is too late to make such a point for the first time in this court, when nothing appears in the record to show an abuse of discretion on the part of the lower court. (Buckley v. Howe, 86 Cal. 596, 600; Robertson v. Burrell, 110 Cal. 568, 579; Durrell v. Dooner, 119 Cal. 411, 413; Prince v. Lamb,, 128 Cal. 130.) Certainly no abuse of discretion is shown or suggested by the record before us. The allegations of the complaint are such as to make it reasonably certain that the pleading could not have been amended truthfully so as to make it state a cause of action. If plaintiff thought otherwise, he should have applied to the court below for leave to amend.

The judgment is affirmed.

We concur:

SHAW, J.

SLOSS, J.

LORIGAN, J.

HENSHAW, J

MELVIN, J.

ANGELLOTTI, C. J.

Sac. No. 2313. In Bank. March 10, 1915.

*THE SAN JOAQUIN & KINGS RIVER CANAL AND IRRIGATION COMPANY (Incorporated), Plaintiff and Appellant, v. JAMES G. STEVINSON, a Corporation, Defendant and Respondent.

[1] EMINENT DOMAIN-RIGHT TO JURY TRIAL-SINGLE ISSUE OF COMPENSATION-DENIAL OF REHEARING-MODIFICATION OF OPINION OF DISTRICT COURT OF APPEAL.-It is held in denying the petition for a rehearing of this appeal in the supreme court after decision in the district court of appeal that in so far as that opinion (20 Cal. App. Dec. 61) holds that the issue as to the necessity for the taking of the property sought to be condemned must be submitted to a jury, unless a jury trial thereof is waived, it is erroneous, as the rule is that in cases of eminent domain all questions, excepting those necessary to determine the compensation to be made to the owner for his property taken or damaged, are to be determined by the court.

[2] ID.-ID.-QUESTIONS TRIABLE BY COURT.-This necessarily includes among the questions triable by the court without a jury, the question whether the plaintiff's canal will unreasonably waste the water to be condemned, and the quantity necessary for the use, after allowing for unavoidable waste; also the question whether the water which the plaintiff already has acquired the right to take would be sufficient for its public use, if carried and distributed without unreasonable waste.

[3] ID. CEMENTING OF CANALS-PREVENTION OF WASTE BY SEEPAGE DISREGARD OF PORTION OF OPINION.-It is also held in denying the petition for a rehearing, that the discussion in the opinion of the district court of appeal with respect to the claim that the plaintiff should be required to cement its canals to prevent waste by seepage should be disregarded on the new trial, as being the law of the case.

Appeal from the Superior Court of Merced County-E. N. Rector, Judge.

For Appellant-Frank H. Short, F. G. Ostrander, Edward F. Treadwell.

For Respondent-J. C. Campbell, James F. Peck.

BY THE COURT.

The petition to transfer this cause to the supreme court for a rehearing is denied. The opinion and decision of the district court of appeal is, however, modified, in fect, in the following particulars:

[1] In so far as that opinion holds that the issue as to the neces sity for the taking of the property sought to be condemned must be submitted to a jury, unless a jury trial thereof is waived, it is erroneous. The rule is that in cases of eminent domain all questions, except those necessary to determine the compensation to be made to the owner for his property taken or damaged, are to be determined by the court. (See Vallejo etc. Co. v. Reed Orchard Co., Sac. No. 2077, decided March 5, 1915.)

[2] This necessarily includes among the questions triable by the court without a jury, the question whether the plaintiff's canal will unreasonably waste the water to be condemned and the quantity necessary for the use, after allowing for unavoidable

*20 Cal. App. Dec., 61.

waste; also the question whether the water which the plaintiff already has acquired the right to take would be sufficient for its public use, if carried and distributed without unreasonable waste. [3] There is considerable discussion in the opinion of the district court with respect to the claim of respondent that the plaintiff should be required to cement its canals to prevent waste by seepage. Its purport on this point is not as clear as could be wished. Inasmuch as the case is remanded for a new trial and these questions are thereupon to be determined by the court below, without a jury, we think all of the discussion on that subject would better have been omitted and we deem it advisable to declare that nothing said about them in the opinion is to be regarded, on the new trial, as the law of the case, and that the court below be left free to decide the case unhampered in this respect. They are questions of fact to be decided in each case upon all the circumstances. No unreasonable expense should be imposed on the public service company.

S. F. No. 6132. In Bank. March 11, 1915.

*METROPOLIS TRUST AND SAVINGS BANK (a Corporation), Plaintiff and Appellant, v. ANNA MONNIER, Defendant and Respondent. ADELINE HASSHAGEN, First Intervenor and Appellant; ALDEN ANDERSON, Superintendent of Banks of the State of California, Second Intervenor.

[1], PROMISSORY NOTE-MORTGAGE-WANT OF REFERENCE TO MORTGAGE NON-NEGOTIABILITY OF INSTRUMENT.-A note secured by a mortgage which is negotiable in form and contains no reference to the mortgage is non-negotiable as to all persons having knowledge that the note and mortgage are co-existent and interdependent.

[2] ID. NOTE SECURED BY MORTGAGE NON-NEGOTIABLE.-Where a note is secured by a contemporary mortgage on land, both instruments having been executed as a part of one transaction, the note, whether negotiable in form or not, is non-negotiable in fact if taken with notice of the existence of the mortgage.

[3] ID.-ACTION FOR FORECLOSURE OF MORTGAGE-PROCUREMENT BY ATTORNEY FROM CLIENT-EXERCISE OF MENACE, DURESS AND FRAUDPLEADING ALLEGATION IN GENERAL TERMS-INSUFFICIENT DEFENSE.An allegation in an answer to an action to foreclose a mortgage that the note and mortgage were obtained by the means of menace, duress and fraud exercised upon the defendant by her attorney, is wholly insufficient to raise an issue or present a defense, and a judgment in favor of the defendant in such an action is not supported from the findings of the exercise of menace, duress and fraud,

[4]_ID.-ID.-ID.-WANT OF CONSIDERATION FOR NOTE AND MORTGAGE FINDING CONTRARY TO EVIDENCE-SURRENDER OF CONTRACTS OF EMPLOYMENT.-A finding in such an action that the note and mortgage were entirely without consideration is contrary to the evidence, where the undisputed testimony is that the note and mortgage were given in exchange for the surrender of existing contracts between the client and her attorney and another attorney providing for the employment of said attorneys on certain terms, and that some services were rendered and some compensation due.

[5] ID.-ATTORNEY AND CLIENT-PROCURING OF NOTE AND MORTGAGE FROM CLIENT-UNDUE INFLUENCE-PRESUMPTION.-A prima facie case in support of the defense in such an action that the note

*On rehearing (48 Cal. Dec. 163).

and mortgage were procured by undue influence is made out by proof that the attorney prior to and at the time he took the note and mortgage was acting as attorney for the client,

ID.-ID.-ID.-ESTABLISHMENT

[6] ID.

OF UNDUE INFLUENCEEFFECT OF VOIDABLE TRANSACTION-CANCELLATION UPON EQUITABLE TERMS.-The establishment of undue influence in such a case does not render the note and mortgage void in the extreme sense of the term, as the transaction would be voidable merely and the instruments not canceled except upon equitable conditions, such as the payment to the attorney of the fair value of the contracts surrendered upon the giving of the note and mortgage.

[7] ID.-ID.-SETTLEMENT BETWEEN ATTORNEY AND CLIENT-INTRODUCTION OF PROOF-REFUSAL TO REOPEN CASE-ABUSE OF DISCRE TION. In such an action, where after submission of the cause and before its determination, the differences between the attorney and client touching the value of the services and her execution of the note and mortgage in payment therefor are adjusted and settled, and the defenses of undue influence, menace, fraud, duress and lack of consideration thus disposed of, it is an abuse of discretion to deny a motion to reopen the case to permit the introduction of evidence of such matters, on the ground that the attorneys for the plaintiff had failed to use proper diligence in securing knowledge of the compromise and adjustment.

Appeal from the Superior Court of the City and County of San Francisco-A. I. McSorley, Judge.

For Appellant-Gavin McNab, B. M. Aikins, Geo. W. Mordecai. For Respondent-Thomas E. Curran, Francis Dunn.

For First Intervenor and Appellant-Edward C. Harrison, Maurice E. Harrison.

For Second Intervenor-F. A. Cutler.

BY THE COURT.

Plaintiff sued to foreclose a mortgage securing a promissory note executed by the defendant Anna Monnier in favor of Charles L. Patton for the sum of $20,000 payable in one year from August 1, 1908, the date of the note and mortgage. The mortgagee sold and assigned the note and mortgage to the Union State Bank on October 26, 1908. On April 26, 1909, the note and mortgage were transferred to the plaintiff Metropolis Trust and Savings Bank as collateral security for a promissory note made on that date by the Union State Bank in favor of plaintiff. On June 17, 1909, plaintiff for a valuable consideration transferred the note and mortgage to Adeline Hasshagen, who appears in this suit as first intervenor, and also transferred to her the note of the Union State Bank which the note and mortgage of Monnier to Patton were assigned to secure. These were taken as part of the consideration of her note and deed of trust for $45,000, on the same date and as part of the same transaction delivered by said Adeline Hasshagen to said plaintiff. However, Mrs. Hasshagen allowed the note and mortgage to remain in the possession of the plaintiff as additional security for her note of $45,000. No part of the note of Monnier to Patton has been paid. More than $20,000 remains unpaid on the note of $45,000 from Hasshagen to plaintiff and she claims the benefit of the foreclosure sought by the banking corporation plaintiff. The superintendent of banks appears as

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