pending before the respondents, having been filed, as we understand it, after the plea for the petitioner was ordered entered by the court. In this connection we shall take occasion to suggest that, under all the circumstances shown here, the court should allow the motion to be pressed, if petitioner so desires. In order to do this it would, obviously, be necessary to first set aside the plea ordered entered for the petitioner by the court. This is, as must readily be understood, only a suggestion which the respondents may or may not adopt, according as they may view the matter. But it is clear, as we think we have shown, that the respondents, by reason of the the offense charged, and of the person of the petitioner, and that the latter has an adequate remedy in the ordinary course of law for the correction of the errors, if any have been made by the court, occurring thus far in the proceedings involving the charge against the petitioner. plainly points out the procedure by which such question may be raised and determined. The act of filing an information by the district attorney in the superior court, charging a party with a crime of which that court has jurisdiction, presupposes, as a predicate of the order of commitment upon which such information is based, a preliminary examination of the charge by a magistrate. Or, in other words, upon the filing of an information the presumption arises that the accused has been given the preliminary hearing by a magistrate upon the charge preferred against him, required by the Constitution as an indispensable prerequisite to the filing of such information. Section 8, art. 1. This presump-filing of the information, have jurisdiction of tion may, however, be rebutted, and section 995 of the Penal Code points out how it may be done. It is therein provided, among other things, that an information must be set aside by the court in which the defendant is arraigned upon his motion, if it appears "that before the filing thereof the defendant had not been legally committed by a magistrate." If, therefore, the petitioner was brought before the magistrate or proceeded against by that officer upon the charge alleged in the information without observance by said officer of the essential or jurisdictional steps made NETT, J. requisite by the law in order to clothe him with authority to proceed to examine a criminal charge against a corporation, it follows that the petitioner was not "legally committed," and that question may properly be brought to the attention of the court, in the first instance, only through a motion to set aside the information, and if error occur at the hearing of such motion, the remedy is by appeal. Murphy v. Superior Court, 58 Cal. 520; Levy v. Wilson, 69 Cal. 105, 10 Pac. 272; Spect v. Superior Court, 59 Cal. 319. In short, in all cases the only proceeding authorized by the law in which the question of whether a party against whom an information has been filed has or has not been legally committed by a magistrate before the filing of such information is a motion to set aside the same on that ground; and, when such motion is made, the superior court entertaining it has jurisdiction to make such ruling thereon as its judgment dictates, whether such ruling involves or is founded on error or not, and the decision must stand unless reversed on appeal. Counsel for petitioner have cited many cases, with the conclusions in which the result reached here does not conflict. There is absolutely no question but that there must be, by the express command of the Constitution, a preliminary hearing by a magistrate of a felony charge, or of a charge commonly called an "indictable misdemeanor," precedently to the making of an order of commitment by which alone an information can be supported. We gather the impression from the arguments of counsel that a motion to set aside the information against the petitioner is now The prayer for a writ of prohibition is accordingly denied, and the alternative writ discharged. We concur: CHIPMAN, P. J.; BUR (9 Cal. App. 553) V. SCUDDERS GALE GROCERY CO. GREGORY FRUIT CO. (Civ. 568.) (Court of Appeal, Second District, California. Dec. 21, 1908. Rehearing Denied by Supreme Court Feb. 18, 1909.) 1. APPEAL AND ERROR (§ 1051*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. Error in admitting parol evidence in exmaterial, where it did not change the meaning of planation of an unambiguous contract is imthe contract, and could not have prejudiced appellant. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4168; Dec. Dig. § 1051.*] 2. EVIDENCE (§ 457*) I PAROL EVIDENCE MEANING OF TERMS. Parol evidence is admissible to explain the meaning of the term "slightly processed," as applied to the condition of a shipment of fruit. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2104, 2105; Dec. Dig. § 457.*] 3. SALES (§ 52*)-COMPLETION OF CONTRACT— EVIDENCE. by correspondence for the purchase and sale of Where plaintiff claims a completed contract fruit, evidence is admissible as to the three different ways such fruit is sold in that market, as tending to show the materiality of plaintiff's offer to buy, as a modification of defendant's offer to sell. [Ed. Note. For other cases, see Sales, Dec. Dig. § 52.*] 4. SALES (§ 52*)-COMPLETION OF CONTRACTEVIDENCE. Evidence held insufficient to show a comand purchase of fruit. plete contract by correspondence for the sale [Ed. Note.-For other cases, see Sales, Dec. Dig. § 52.*] Appeal from Superior Court, San Bern- | munications in which plaintiff claimed the ardino County; Benjamin F. Bledsoe, Judge. contract was completed and demanded shipAction by the Scudders-Gale Grocery Company (a corporation) against the Gregory Fruit Company (a corporation). From a judgment for defendant, plaintiff appeals. Affirmed. C. B. Morris and C. C. Haskell, for appellant. Leonard & Surr, F. A. Leonard, and Frank C. Prescott, for respondent. ALLEN, P. J. Appeal by plaintiff upon a bill of exceptions from a judgment rendered in the superior court of San Bernardino county in favor of defendant. ment. Defendant made no reply to these letters. On October 7th plaintiff purchased peaches of the kind and character specified in the proposition in the open market, and was required to pay therefor an advanced price. While, aside from the words "slightly processed," there appears to be nothing in the communications uncertain or ambiguous, nevertheless, the court permitted evidence tending to show that the words "subject approval sample time shipment" meant in the custom of the business that the samples should be examined at the shipping point before shipment was made; that the custom in such sales was for the representative of the buyer to inspect samples before shipment. In view of the fact that the proposition of defendant was that they would get the car out only upon approval of the sample, which sample should be approved at the time of the shipment, it seems to us apparent that the proposition of defendant was that some one representing the plaintiff should approve of a sample of the fruit at the time of the shipment upon which approval the car would be forwarded. The evidence admitted, however, only being in line with what seems to us the plain meaning, could not in any wise have prejudiced plaintiff. Evidence was also offered, under plaintiff's objection, to the effect that, where peaches were slightly processed, they would be in a different condition at the time of their arrival from that shown by the sample at time of shipment; the tendency of processed fruit being to dry out and lose Plaintiff corporation, doing business at St. Louis, Mo., claims to have made a contract with defendant corporation, doing business at Colton, Cal, for the purchase of certain peaches, and that on account of defendant's default in delivery thereof damage resulted, for which it demands judgment. The principal question involved upon this appeal relates to the sufficiency of the evidence to support the finding of the trial court that the defendant did not enter into the agreement as alleged by plaintiff. There is evidence in the record tending to show that one Evans was authorized by defendant to quote prices of peaches to plaintiff, which he did at St. Louis, Mo., on or about May 18, 1905. These prices quoted were not acceptable to plaintiff, and it submitted to Evans a counter proposition at a lower figure, which counter proposition Evans wired to defendant, and was in the words following: "Scudder offers for delivery Sept. 10, f. o. b. common point, 400 50-lb. boxes choice yellow peaches 54c.; 400 50-lb. boxes choice peaches, Muirs, slight-weight in transit. This testimony was adly processed, 51⁄2c. Brokers here offering missible as tending to show what was meant same." Defendant upon receipt of such coun- by the term "slightly processed," and what ter proposition wired Evans as follows: "Re- was understood between the parties by its garding your wire 17, confirm, Scudder, sub- use. Evidence was further introduced by the ject approval sample time shipment." And on defendant tending to show that under the the day following wrote Evans as follows: custom of the trade goods of this character "Per our wire of the 17th, we have confirmed were sold in three different ways: (1) A genon following order: Scudder-Gale Groceryeral sale for a specified price; (2) by sample Co. 400 50-lb. boxes choice yellow peaches, delivered and approved upon receipt at place 50-lb. boxes 54c. 400 50-lb. boxes choice Muir peaches, 50-lb. boxes, 5%1⁄2c. Slightly processed shipment by Sept. 10th. Subject approval sample time shipment. We will get car out as specified, upon approval sample." This letter Evans showed to plaintiff's president, who requested permission to retain it, saying: "We will keep this as a sale ticket" -Evans replying that he had no objection to the plaintiff retaining possession of the letter, and further said: "I would like to have you take the matter up with the Gregory Fruit Company-any further negotiation with regard to this matter-as I myself will not be here." Plaintiff did not communicate further with defendant in regard to the transaction until September 13th, when it wrote defendant asking that the samples be sent to St. Louis. This was followed by other com of delivery; and, (3) upon examination and approval of sample by purchaser at time and place of shipment. We think this was admissible as tending to show the materiality of the modification of plaintiff's offer as contained in the letter of May 18th. The offer from Evans was a general purchase of a certain character of fruit at a fixed price without reference to sample. This offer was not accepted by defendant, except as to the price per pound for the specified varieties, as to which it was confirmed; but defendant imposed another condition not incorporated in plaintiff's offer, which was that the goods were to be sold by sample, examined, and approved by the purchaser at time and place of shipment. This modified proposition of defendant's was not accepted to defendant's knowledge by plaintiff; nor can plaintiff well say that it was intended by it to be so ac | right to commission on renewal premiums ceascepted by reason of its retention of the lettered on the termination of the contract. as a sale ticket, for, at the time when plaintiff asked to retain the letter as such ticket, Evans stated to plaintiff that further negotiations must be taken up directly with defend ant, which could not have been understood by plaintiff in any way other than as a statement by Evans on behalf of defendant that the negotiations were not ended, but required some affirmative act upon plaintiff's part to conclude the same. We do not see anything in the record from which it can be said that defendant by any act is estopped to deny this contract. As we read the record, the great weight of the evidence is to the effect that there was no contract, that the minds of the parties did not meet, and that no definite agreement was ever entered into between them in connection with the sale and purchase of this property, and the finding of the court complained of has ample support in the testimony. This finding being supported, the finding of the court with reference to the relation which Evans bore to defendant is of no consequence. We perceive no error in rejecting testimony as to the character of the original offer made by Evans to plaintiff, which was rejected. Such offer is not shown to have had any connection with the subsequent proposition and counter proposition, which were in writing, and under which plaintiff claims. The finding that there was no contract supports the judgment, which should be affirmed; and it is so ordered. We concur: SHAW, J.; TAGGART, J. (9 Cal. A. 534) NELLES V. MACFARLAND. (Civ. 555.) (Court of Appeal, Second District, California. Dec. 19, 1908. Rehearing Denied by Supreme Court Feb. 16, 1909.) 1. PRINCIPAL AND AGENT (§ 38*)-RELATIONTERMINATION-REVOCATION BY PRINCIPALWRITTEN NOTICE. A principal's letter to his agent, stating that it is necessary to terminate the contract of agency, "notice of which is hereby given," is a sufficient exercise of the principal's right to terminate the agency by giving written notice. [Ed. Note. For other cases, see Principal and Agent, Dec. Dig. § 38.*] 2. INSURANCE (§ 84*)-AGENTS-COMPENSATION -COMMISSION ON RENEWALS. Defendant, the general agent of a life insurance company, employed a special agent, and obligated himself to pay the agent an agreed percentage of such renewal premiums as might be paid upon policies procured by the agent, provided such renewals should be paid "during the continuance of this contract." The contract provided that it was to terminate upon the termination of defendant's contract with the company, and the latter contract terminated before any renewal premiums were paid. Held that, by giving effect to every part of the contract, as required by Civ. Code, § 1641, the agent's [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 112; Dec. Dig. § 84.*] Appeal from Superior Court, Los Angeles County; Frederick W. Houser, Judge. Action by L. G. Nelles against A. F. MacFarland. From a judgment for defendant, plaintiff appeals. Affirmed. Taylor & Forgy, for appellant. J. W. Mc Kinley, for respondent. SHAW, J. On September 15, 1903, the defendant, who at the time was general agent of the Prudential Insurance Company of America, but in his individual capacity, entered into a contract with plaintiff's assignors, whereby the latter were appointed special agents in certain territory for the purpose of procuring applications for insurance in said company, and upon whom, by the terms of said contract, were imposed certain incidental duties connected with such employment. The contract consists of 14 clauses inserted in numerical order, and all of which consisted of printed matter, except clause 13, which was inserted in writing before the execution of the contract. We refer to those parts of the contract which we deem material to a consideration of the case. By clause 6 of the contract it was provided that such special agent should be allowed, for its services, the "compensation only" as fixed by a schedule made a part of the contract (but not inIcluded in the record), which was a commission of the first year's premiums collected in cash on policies of insurance procured through the efforts of such agent. By its terms no time was fixed for the termination of the contract, but clause 4 provides that either party thereto may, either with or without cause, upon giving seven days' notice in writing to the other of its intention so to do, terminate the same; and it was by the provisions of said clause 4 further expressly provided that in any event the contract should terminate upon the termination of the contract then existing between the company and said agent, the defendant herein. Clause 7 of the contract provides that, in case of a termination thereof "for any cause whatever," the compensation which shall then have been paid to the agent, together with amount then due under the contract, shall be in full settlement of all claims and demands, and all further compensation which a continuance of the agency might have secured to him shall be waived and forfeited, except as may be hereinafter provided. Clause 8 provides for the payment to the agent of a commission on any deferred first year's premiums when it shall be collected on policies procured by the agent, and which may remain unpaid at the time of the cancellation of the contract, subject, however, to row at severing the old relations. Under the provisions of clause 4 we think this notice was a sufficient exercise of defendant's right therein given to terminate the contract of September 15, 1903, as well as that of April 19, 1904, so far as he could exercise such power, and that it was so intended and understood by both parties. This finding, however, became immaterial, in view of the fact that the contract of September 15th was terminated when defendant severed his relations with the company, which the court finds occurred in May, 1905. The court finds that during the continuance of the contract of September 15, 1903 (and it may be assumed that it continued to May, 1905) no renewal premiums in any sum whatever, or at all, were received by said defendant, or by the company. Two exhibits, stipulated to be correct, were filed, which it is claimed showed the business written prior to April 19, 1904, and renewal premiums paid thereon, together with time of payment, but as they are not included in the record, there is no evidence disclosing that any renewal premiums whatever were paid prior to May, 1905, at which time the court finds that all contracts between defendant and the agent were termi the agent being in good standing at the time, Appellant contends that the judgment is based upon an erroneous interpretation of the contract, and that certain findings, particularly the third and fourth, find no support in the evidence, of which the contract constitutes the chief part. It appears that defendant, on December 23, 1904, wrote a letter to the agent, which was duly received, wherein, among other things, he stated, "It is, of course, necessary to terminate your present contract to produce new business for me on December 31, 1904, notice of which is hereby given," to which plaintiff's assignors replied on December 27, 1904, expressing sor Whether these findings, 5 and 6, as to the termination, annulment, and cancellation of the contracts are supported by the evidence depends upon the interpretation given to clause 13. The language of this clause of the contract appears to be plain and unambiguous, and means just what its language imports, namely, that defendant obligated himself to pay the agent 72 per cent. of such renewal premiums as might be paid upon policies of insurance procured by the agent, provided such renewals should be paid "during the continuance of this contract." The allowance of this 72 per cent. upon renewal premiums was in express and positive terms made conditional upon their being paid during the continuance of the contract, the right to terminate which was by like express terms reserved unconditionally to either party, but according to the provisions of the contract it was in any event to terminate upon the termination of the defendant's contract with the company. This latter contract terminated in May, 1905, prior to which time no renewal premiums were paid. By section 1641, Civ. Code, it is made the duty of the court, in the interpretation of contracts, to give effect to every part thereof, if reasonably practicable. In no other way than as thus interpreted can effect be given to the words, “during the continuance of this contract." To accept plaintiff's interpretation that the agent is entitled to the agreed percentage on nine renewal premiums upon all business procured prior to April 19, 1904, irrespective of the time when the same may be paid, is to ignore that part of the contract constituting an ex press condition, upon performance of which the agent's right to recover must be predicated. The judgment is affirmed. defendant, whereupon the court allowed the challenge and discharged the jury. Immediately thereafter the court made a minute order as follows: "There being no jury in attendance on this court to try this cause, in We concur: ALLEN, P. J.; TAGGART, J. consequence of allowing said challenge inter (9 Cal. App. 545) (Cr. 93.) PEOPLE v. VASQUEZ. (Court of Appeal, Second District, California. Dec. 21, 1908.) posed by the defendant, it is ordered that the sheriff summon in the manner provided by law 20 good and lawful men to be and appear in this court on August 13, 1907, at 2 o'clock P. m., to act as trial jurors in this cause." Pursuant to said minute entry, an order di 1. JURY (§ 67*) SUMMONING JURORS-OFFI-rected to the sheriff was duly issued out of CERS WHO MAY SUMMON. A deputy sheriff possesses only the powers of his principal, as provided by Pol. Code, § 865, and, if the sheriff is disqualified from summoning jurors, the deputy cannot execute the venire, though not otherwise disqualified himself. [Ed. Note. For other cases, see Jury, Cent. Dig. 300; Dec. Dig. § 67.*] 2. JURY (§ 67*)-SUMMONING JURORS. By the provisions of Pol. Code, pt. 4, tit. 2, § 4173 (St. 1907, p. 403, c. 6), and Code Civ. Proc. § 226, the power of the court to appoint an elisor to execute an order for summoning the jury is limited to those cases wherein the disqualification extends both to sheriff and coroner; the sheriff's duty in the first instance being al ways cast upon the coroner when the sheriff is disqualified. the clerk's office commanding such sheriff to summon 20 men to appear at 2 o'clock of that day to act as trial jurors in said case. The sheriff upon the same day made return to the said writ certifying the names of 20 men so summoned to act as jurors, 19 of whom were identical with those theretofore discharged from the panel under defendant's challenge thereto. This return was made and signed by: "Y. McFadden, Sheriff. By J. L. Walsh, Under Sheriff." Thereupon defendant interposed a challenge to this entire panel upon the grounds of bias and prejudice of the officer who summoned said jurors, and the fact that such officer had formed and expressed an opinion unfavorable to defendant. Upon the evidence introduced, and it being stipulated that the sheriff in person had not Though there is no express provision in the summoned any of said jurors, the challenge Code whereby the duties of the sheriff are cast upon the coroner, except in cases where the was denied. A second and third panel of jusheriff is a party, as provided by Pol. Code, pt. rors were summoned under like orders and 4, tit. 2. § 4172 (St. 1907, p. 403, c. 6), the court with like return, to both of which defendant on sustaining a challenge to the panel on the interposed a like challenge, and the same was ground that the sheriff, by reason of bias, was disqualified, under Pen. Code, § 1064, from by the court denied. Defendant exhausted all summoning jurors, should exercise its common-peremptory challenges to which he was enlaw power conferred by Pol. Code, § 4468, and direct the coroner, unless also disqualified, to execute the new venire, the coroner being the sheriff's substitute at common law. [Ed. Note.-For other cases, see Jury, Cent. Dig. § 300; Dec. Dig. § 67.*] 3. JURY (8 67*)-SUMMONING JURORS. titled. The court found that the sheriff, by reason of his having formed and expressed an opin [Ed. Note.-For other cases, see Jury, Cent. ion adverse to the defendant, was disqualified Dig. § 301; Dec. Dig. § 67.*] under the provisions of section 1064 of the Appeal from Superior Court, San Luis Obis- Penal Code from summoning jurors to try the po County; E. P. Unangst, Judge. David Vasquez was convicted of rape, and he appeals. Reversed. S. V. Wright and Chas. A. Palmer, for appellant. U. S. Webb, Atty. Gen., and George Beebe, Deputy Atty. Gen., for the People. SHAW, J. Defendant was convicted of the crime of rape, committed upon a female child under the age of 16 years. He appeals from the judgment and an order denying his motion for a new trial. The sheriff, under an order for a special venire, summoned a panel of 35 men from which to select a jury to try the case. Defendant, upon the ground specified in section 1064 of the Penal Code, interposed a challenge to the entire panel. Thereupon an examination was had and evidence introduced, from which it appeared the sheriff had | formed and expressed an opinion adverse to case, notwithstanding which fact it issued an order commanding him to summon a second special venire from which to select a jury to serve in the trial thereof. In so doing, and in denying the defendant's subsequent challenge to the special panel summoned under the order directed to the sheriff and executed and returned by said sheriff, through his deputy or under sheriff, the court erred. The fact that the evidence fails to show that such deputy was disqualified is immaterial. He is not the officer to whom the writ was issued, and, although the person, he is not the officer who executed and made return thereof. Such officer was the sheriff whom the court had found to be disqualified to act. The right of the deputy to act was by virtue of the authority which the law vests in the sheriff in whose name he acts. Since the sheriff was without warrant, it was impossible for him to confer such authority upon his deputy. "In all cases not otherwise |