a new trial, was filed and served on the twenty-fifth day of July, 1883; that no undertaking on appeal was filed, nor was the same ever waived by the adverse party in writing, but that, according to the certificate of the clerk of the trial court, a sum of money in lieu thereof was deposited with him for the appellant on the thirty-first day of August, 1883,-more than five days after the notice of appeal was served and filed. Therefore, on the authority of Biagi v. Howes, 63 Cal. 384, Francis E. Stratton, claiming to appeal under section 940, Code Civil Proc., without having in effect done so, should be refused a hearing by this court.

CLAFFEY V. HARTFORD FIRE INs. Co. (No. 9,107.

Filed December 4, 1885.

FIRE INSURANCE-BREACH OF WARRANTY-AMBIGUITY IN BILL OF SALE. In an action to recover on an insurance policy for a loss sustained by the burning of a certain barn, where the defense set up is breach of warranty on plaintiff's part in representing that the title to the property was in himself when he had no title thereto, and plaintiff, to make out his title, introduces a bill of sale as follows: "For a valuable consideration the Spring Valley Water-works grants and conveys unto John Claffey the Wolfe houses, but reserves the right to use the same until the first day of November, A. D. 1877;" and it appears on the trial that the barn insured, together with other houses, were built by a Mr. Wolfe,-the fact of the word "houses" being used in the bill of sale makes it plain that more than one house was by it conveyed to the plaintiff; and such an ambiguity existed in that instrument as warranted an explanation by parol testimony to determine whether or not the term "the Wolfe houses" included the barn in question

Commissioners' decision.

Department 2. Appeal from superior court, city and county of San Mateo.

E. A. & G. C. Lawrence, for appellant.

Gray & Haven, for respondents.

FOOTE, C. Plaintiff, Claffey, instituted this action against the defendant, on a fire insurance policy, alleging that it covered a loss he had sustained by the burning of a certain barn. The defendant's main objection to payment of the demand was a breach of warranty on the part of plaintiff, in representing that the barn was his property, when he had no title thereto. The plaintiff, as tending to show ownership of the building in dispute, introduced in evidence the following copy of a bill of sale:

"For a valuable consideration the Spring Valley Water-works grants and conveys unto John Claffey the Wolfe houses, but reserves the right to use the same until the first day of November, A. D. 1877.

"Witness the corporate name and seal of said corporation hereunto subscribed and affixed by Chas. Webb Howard, its president, in pursuance of

a resolution heretofore passed by its board of directors, this ninth day of July, A. D. 1877. "THE SPRING VALLEY WATER-WORKS,

"By CHAS. WEBB HOWARD, President." There was evidence introduced on the trial which tended to prove that a house, barn, and two sheds had been built by a Mr. Wolfe, and they were generally designated "the Wolfe houses;" that they had become the property of the Spring Valley Water-works, and, under the bill of sale from that corporation, the plaintiff had become the owner thereof. The word "houses" being used in the bill of sale, it is plain that more than one house was by it conveyed to the plaintiff, and such an ambiguity existed in that instrument as warranted an explanation by parol testimony to determine whether or not the term "the Wolfe houses" included the barn in question.

The court below informed the plaintiff, after all the testimony in the cause had been allowed to go to the jury, that a nonsuit ought to have been granted, because the bill of sale put in evidence did not include the barn, and that plaintiff had not shown any title in himself to it, and that the jury should be so instructed, which was done; and a verdict returned for the defendants. The issues of fact, as made, should have been submitted to the jury for decision, upon the evidence introduced; and as such course was not taken, the judgment and order denying a new trial should be reversed, and the cause remanded.

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

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are reversed, and the cause remanded for a new trial.

(68 Cal. 113)

PEOPLE v. STEVENS.

(No. 20,116.)

Filed November 27, 1885.

BURGLARY-CONSPIRACY-EVIDENCE.

On trial for burglary, evidence that the defendant came into the store of witness on the morning following the night when the burglary was alleged to have been committed, and endeavored to sell articles similar to those claimed to have been stolen, and that while defendant was so endeavoring to sell such articles the witness looked out and saw the co-defendant standing outside, is not in itself sufficient to establish a conspiracy between such defendants, nor is it proper testimony to go to the jury as tending to establish such fact; nor is further evidence of the fact that many lays after the alleged burglary the defendants were seen conversing together, evidence of such conspiracy. Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco.

John D. Whaley, for appellant.

The Attorney General, for respondent.

FOOTE, C. The defendant was convicted of burglary in the first degree. A motion for a new trial was made and denied. From the order made in the premises and the judgment of conviction this ap

peal was taken. It is urged that error was committed in admitting the evidence of a witness, Parrott, with reference to the acts of one Harrigan, who had been indicted jointly with defendant, but as to whom, on the trial, a severance was had. One Cohen had previously testified that the defendant, on the morning following the night when the burglary with intent to commit larceny was alleged to have been committed, had entered his store and endeavored to sell him boots similar to those claimed to have been stolen, and that, while the defendant was in the prosecution of that purpose, he, Cohen, looked out and saw Harrigan standing outside. The question asked Parrott against the objection of the defendant was:

"Question. Did you see Mike Harrigan and any one else on the evening of December 31, 1884, in the neighborhood of Joseph Gutberlet's store? State what you saw?"

To which the following reply was given, also against the defendant's objection:

"Answer. On the evening of December 31, 1884, at about 8 o'clock P. M., I saw a man named Harrigan, and two others who I don't know, looking in the window of Joseph Gutberlet's store, and when they saw me coming they ran away."

The judge who presided on the trial evidently must have concluded that, by the testimony of Cohen, a sufficient foundation was laid to establish prima facie the fact of conspiracy between the defendant and Harrigan, or that it was proper testimony to be laid before the jury as tending to establish such fact. In this we cannot concur. Suppose a thief to be selling a stolen watch at a jewelry store, anywhere in the crowded city of San Francisco on some public thoroughfare; would the mere fact that any respectable citizen stood on the outside, and the proprietor of the store observed him there, tend to prove any conspiracy between him and the thief in the commission of a burglary the night before, when the watch was stolen? And yet the evidence as to a conspiracy between the defendant and Harrigan, as given by Cohen, was no stronger than the incident above supposed. Nor is there anything else in the evidence which tends more strongly to show a conspiracy between those parties. The statement of Parrott as to his having seen them days after the burglary, conversing, as he supposed by the motions of their hands and heads, would only tend to impeach the defendant's statement that he did not know Harrigan. Nor can we say from the record that the admission of this testimony on the part of Parrott first discussed, did not injure the defendant's cause before the jury. The law upon the question of conspiracy, and the consideration which the jury should give to what might or what might not be evidence on the same, was well stated. People v. Geiger, 49 Cal. 643, 649. And taking the whole charge of the court in its entirety, and giving to it a fair and unstrained interpretation, it announced the law applicable to the case fully and plainly. It is urged by the defendant that there was no proof that the al

leged offense was committed in the night-time. From the evidence, the breaking and larceny must have occurred between the hour of 8 o'clock, on the evening of the thirty-first of December, 1884, and the same hour on the morning of the first of January, 1885. On the latter day the sun rose at 7:25 o'clock. There was not the least scintilla of proof that the crime was committed in the 35 minutes that intervened from that time until that when the proprietor of the store discovered the burglary had been committed. On the other hand, all the evidence, both positive and circumstantial, tended to show its being done on the night before as charged.

The judgment and order should be reversed, and a new trial granted.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are reversed, and cause remanded for a new trial.

(2 Cal. Unrep. 578)

CROSS v. ZELLERBACH and another. (No. 9,796.)

Filed November 30, 1885.

1. STATUTE OF LIMITATIONS-WAIVER OF-PAROL EVIDENCE OF.

In an action on promissory notes, where the bar of the statute of limitations is set up and issue is joined thereon, the plaintiff relying upon a writing signed by the defendant waiving the benefit of the statute of limitations, parol evidence is admissible of the circumstances under which, such writing was executed as part of the res gestæ,

2. FINDINGS EVIDENCE.

Findings held supported by the evidence.

3. JUDGMENT AFFIRMED.

On authority of Cross v. Zellerbach, 63 Cal. 635, judgment affirmed. Department 2. Appeal from superior court, county of Nevada. R. H. Taylor and J. M. Malling, for appellant.

Searls, Niles & Searls and H. V. Reardan, for respondents. THORNTON, J. This cause has been before this court twice on appeal, and the judgment on the first appeal will be found reported in 55 Cal. at page 433 et seq., (under the title of Sigourney v. Zellerbach,) and on the second appeal in 63 Cal. at page 635. On the appeal last referred to the case bears the same title as the one before us; Sigourney having since the commencement of the action departed this life, and Cross having been afterwards appointed his administrator and been substituted in place of Sigourney.

The action was originally brought to foreclose a mortgage executed to the plaintiff Sigourney by a corporation called the Eureka Lake Company. The parties to the cause were the present plaintiff's intestate, the defendants Eureka Lake & Yuba Canal Company, and Zellerbach. It was heard on the pleadings and findings and decree of the court below. See statement, 63 Cal. 636. The judgment in that case was reversed for reasons stated in the opinion above re

ferred to. On the return of the cause to the court a quo, the plaintiff filed in that court a supplemental complaint, which was answered by Zellerbach and the Eureka Lake & Yuba Canal Company. This company filed also a cross-complaint, to which a demurrer was interposed by Zellerbach. This demurrer was sustained, and from the judgment in the case, which was in favor of the plaintiff and against the company, an appeal was prosecuted by the defendant company, on which appeal the main question presented was the ruling of the court a quo on this demurrer. On this appeal the ruling of the court upon this demurrer was held erroneous and the judgment reversed. The facts before the court for consideration on this last appeal are also before us on the present one. We refer to the facts on which the case of the plaintiff and the defendant corporation rests. In the opinion filed in this last appeal in 63 Cal. this court, after fully stating the facts, remarked:

"If the facts be as stated, we see no reason why a decree should not be entered substantially as prayed for in both the supplemental and cross-complaints, to the effect that the plaintiff retain and hold the money so paid in full satisfaction of his demand in the action, and that he be adjudged to satisfy of record and to cancel and deliver up the note and mortgage described in the original complaint, and to cancel and deliver up to Zellerbach the $40,000 and $10,000 notes executed by him, and that the $12,000 note executed to Sigourney by the Eureka Lake Water Company, together with the mortgage executed by that company to Sigourney and Marcellus, be decreed to be fully satisfied." 63 Cal. 642.

It would needlessly prolong this opinion to state the facts of the case on which plaintiff and the defendant company claim the favorable judgment of this court. They are fully stated on pages 637 to 642 in 63 California Reports, and reference is made to that statement. The facts alleged in the cross-complaint, which were assumed to be true in the judgment in 63 Cal., are found now to be true in the case under consideration. We will only state here, as to the 1,250 shares of stock mentioned in the passage quoted above from the opinion of the court in 63 Cal., that these shares were deposited with Parrott by Zellerbach as collateral security for a note of $40,000, executed by Zellerbach to Sigourney under an agreement between them executed on the twenty-third of August, 1865, and which were sold under the judgment of the district court, which was reversed, as reported in 55 Cal. On the reversal of the judgment as stated above, the cause was remanded, with directions to the court below to overrule the demurrer to the cross-complaint, and for proceedings not inconsistent with the opinion on such reversal. The cause was sent back to the court a quo, who heard the same, and found on the testimony and the admissions in the pleadings the facts above referred to to be true; and, finding them to be true, entered a judgment as indicated by the opinion above referred to. The findings of the court were adverse to certain defenses set up by Zellerbach and held not to be in the way of the judgment which was rendered.