[S. F. No. 6615. Department Two.-March 10, 1917.] L. WOODARD, Respondent, v. GLENWOOD LUMBER COMPANY (a Corporation), et al., Respondents; WILLIAM M. AYDELOTTE, Appellant. LUMBERING CONTRACT-AGREEMENT FOR SERVICES IN SECURING MEASURE OF COMPENSATION.-In an action to recover the agreed price for services in securing for a lumber company the contractual right to cut and remove timber from the lands of the owner, it is held that the company's obligation under the terms of its agreement is to be measured by the amount of the timber actually cut, and not by the amount it might have cut had it completed its contract with the owner. APPEAL from a judgment of the Superior Court of San Mateo County. George H. Buck, Judge. The facts are stated in the opinion of the court. A. H. Jarman, for Appellant. Beasly & Fry, for Respondents Glenwood Lumber Company and Jacob Miller. W. P. Netherton, for Respondent I. T. Bloom. George Clark, and J. A. Elston, for Respondent L. Woodard. Charles B. Younger, for Respondent First National Bank of Santa Cruz. HENSHAW, J.-The general facts in this case are set forth in another appeal taken from the same judgment. The decision of this court will be found in 171 Cal. 513, [153 Pac. 951]. For his services in securing for the Glenwood Lumber Company from L. Woodard a contract authorizing the former to cut and remove timber from the lands of the latter, the Glenwood Lumber Company, by written contract, agreed to pay appellant Aydelotte ten cents per thousand feet "for each and every one thousand feet of lumber that the first party or its successors or assigns may become indebted to said Woodard for under the said contract between them." Plaintiff Woodard in time brought suit for a cancellation of the contract for sundry breaches of it, and for a decree quieting his title and restoring him to the possession of his timber lands. Bloom and Miller, who, by assignment, had successively succeeded to the rights of the Glenwood Lumber Company under the contract, were made parties defendant, as was this appellant. It appeared that Bloom and Miller accepted the assignment of Woodard's contract with the Glenwood Lumber Company, subject to appellant's rights under his contract with the Glenwood Lumber Company, and the court so found. It found also that if these defendants had performed their contract and cut the millions of feet of timber upon these lands, appellant would have been entitled to several thousand dollars by virtue of his contract of ten cents per thousand feet. They did not, however, perform their contract nor cut this wood nor "become indebted to Woodard under the contract" for any wood cut. The court, finding all of these facts, found that his fellow-defendants had not breached their contract with Aydelotte, and that he was therefore not entitled to a recovery. Upon this appeal it is argued that under the facts found he was entitled to a recovery for the full amount of ten cents per thousand feet of the fifty or more million feet of timber left standing on the land. The difficulty with appellant's position, however, arises from the very terms of the contract itself. It has been sufficiently pointed out that his codefendants did not agree with appellant to cut all or any part of the timber upon the land. Their agreement to do this was with Woodard alone. All, so far as appellant is concerned, that they agreed to do was to pay him ten cents per thousand feet for such portion as they did cut, and this in fact they did, and as their contract went no further the court's judgment was correct, and is affirmed. Melvin, J., and Lorigan, J., concurred. [S. F. No. 7147. Department Two.-March 10, 1917.] ISAACK KOHN, Respondent, v. C. E. PARENT et al., Appellants. DEED ABSOLUTE UPON ITS FACE EVIDENCE TO ESTABLISH A MORTGAGE. The evidence must be clear and convincing to establish that a deed absolute upon its face is a mortgage. In this case the evidence is held not of such character. APPEAL from a judgment of the Superior Court of Marin County, and from an order refusing a new trial. Edgar T. Zook, Judge. The facts are stated in the opinion of the court. Charles F. Hanlon, and S. C. Denson, for Appellants. James W. Cochrane, D. Freidenrich, and Heller, Powers & Ehrman, for Respondent. HENSHAW, J.-Plaintiff sued to quiet title to a certain piece of land. The defendant A. B. Kreft was trustee of the estate of Phillip Kohn in bankruptcy, plaintiff having acquired his title by deed from Phillip Kohn and wife. The other defendants appealing are judgment creditors of the insolvent. Their contention is that the deed of Phillip Kohn to his father, the plaintiff, was intended as a mortgage, to secure the payment of ten thousand dollars, and that their judgments duly docketed are valid and subsisting liens on the property subject to this mortgage, and that title to the property is in the trustee in bankruptcy, subject to the mortgage and to these judgment liens. The deed was absolute in form. The testimony of plaintiff was that he paid ten thousand dollars for the property, and this is abundantly established by his canceled check drawn in favor of and paid to Phillip Kohn. Since the date of the deed he has occupied the property and spent over six thousand dollars in improvements thereon. He has continuously resided upon the property since the date of the deed and paid all city, county, and state taxes upon it. His testimony was supported by that of his son, that the transaction between himself and his father was an absolute sale. The deed to the father was executed by the son Phillip and by his then wife, Stella Kohn. She testifies that her fatherin-law told her that he was going to lend the son ten thousand dollars upon the security of the property to enable him to adjust the property disputes between the husband and the wife in the matter of their divorce suit then pending or in prospect; that her father-in-law said that the property was valued at twenty-five thousand dollars; that he thought it was good security; that the security was so good that he was willing to loan twenty-five thousand dollars on the strength of it. The occasion of this conversation was the first time that she had ever spoken to her father-in-law. Called in rebuttal he testified that he had never seen his daughter-in-law except in court; he had never had any such conversation with her; that the property in fact was not worth what he gave his son for it, and that he gave him this money over and above the value of the property because of the son's difficulties. Further evidence was introduced to the effect that the property was assessed for but little over two thousand five hundred dollars; that Phillip Kohn, when owner, had in vain offered it for sale to the assessor for seven thousand five hundred dollars. It scarcely needs the citation of authority in support of the statement that to establish that a deed absolute upon its face requires clear and convincing evidence thus to vary its written terms and establish that it is a mortgage. (Mahoney v. Bostwick, 96 Cal. 53, [31 Am. St. Rep. 175, 30 Pac. 1020]; Sherman v. Sandell, 106 Cal. 373, [39 Pac. 797]; Sheehan v. Sullivan, 126 Cal. 189, 193, [58 Pac. 543]; Woods v. Jensen, 130 Cal. 200, [62 Pac. 473].) Mrs. Kohn's testimony touching her execution of the deed, which was that she glanced over it, did not understand its meaning, and was told that it was a mortgage, is flatly contradicted by Mr. Cochrane, an attorney. He was not Mrs. Kohn's attorney, but was present at her execution of the deed. He denied that he made any such misrepresentations to her, and testified that it was explained to her that the instrument was a deed at the time she executed it, and that no reference whatever was made to it as being a mortgage. All of the parties to this controversy claim from a common source of title-Phillip Kohn. His deed to plaintiff, therefore, as against all of the appellants established a prima facie case (Brusie v. Gates, 96 Cal. 265, [31 Pac. 111]; McGorray v. Robinson, 135 Cal. 312, [67 Pac. 279]), and the case, as established by plaintiffs, for the reasons given, was not overcome. The judgment and order appealed from are therefore affirmed. Melvin, J., and Lorigan, J., concurred. [L. A. No. 3882. In Bank.-March 10, 1917.] ELLEN THOMPSON et al., Appellants, v. C. H. HANCE, as Treasurer of the City of Los Angeles et al., Respondents. MUNICIPAL CORPORATIONS-STREET IMPROVEMENT ACT-TUNNEL UNDER PUBLIC STREET-LOCAL ASSESSMENT DISTRICT.-A municipality has no authority, under the Street Improvement Act of March 18, 1885, commonly known as the Vrooman Act, and the amendments thereto, to construct a tunnel under a public street solely for purposes of public travel, or to assess the cost of such improvement upon a local district. The tunnels authorized by that act are those intended for drainage or sewer purposes. ID. TUNNEL NOT PART OF STREET.-A tunnel constructed under a public street, having no intermediate connection between its terminal portals with the surface above and not following the lines of the street throughout its entire length, is not a part of the street itself within the purview of the Vrooman Act. ID. CITY OF LOS ANGELES INITIAL CONSTRUCTION OF TUNNEL-AsSESSMENT ON LOCAL DISTRICT NOT AUTHORIZED BY CHARTER.-The city of Los Angeles has no power, under section 2 of its charter, as amended in 1911 (Stats. 1911, p. 2059), to levy an assessment upon a local district in order to raise the money necessary for the initial establishment of a tunnel intended for purposes of public travel, as distinguished from the repair or improvement of an existing subterranean avenue. ID. BONDS ISSUED FOR TUNNEL ASSESSMENT-NOT VALIDATED BY BOND ACT. The city being without power to levy such an assessment upon the property of a local district, bonds issued therefor are not validated by the validating clause of the Bond Act. APPEAL from a judgment of the Superior Court of Los Angeles County. Willis I. Morrison, Judge. The facts are stated in the opinion of the court. |