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in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding; but it is also a general rule that the assent of a party to a contract is necessary in order that it be binding upon him, and that, if the circumstances of a transaction are such that he is not estopped from setting up his want of assent, he can be relieved from the effect of his signature if it can be made to appear that he did not in reality assent to it. Foster v. Mackinnon, L. R. 4 C. P. 704; Whitney v. Snyder, 2 Lans. 477; Selden v. Myers, 20 How. 506; Trambly v. Ricard, 130 Mass. 259; Freedley v. French, 154 Mass. 339, 28 N. E. Rep. 272. In the present instance the plaintiff's knowledge of the instrument which he signed was made one of the issues before the jury without any objection at the trial, and it was therefore proper for the court to submit that issue to the jury. It does not appear that anything was ever said to the plaintiff concerning a release of his claim by any one on behalf of the defendant, and the plaintiff testified that he could not read the instrument, and that he did not read it when he signed it. It had been prepared by one of the employes of the defendant for the purpose of procuring a release, and was given to the plaintiff's wife to procure its signature by her husband. She could not read it, nor could the person who gave it to her; but she testified that at her request it was read to her by Green, the defendant's timekeeper, and that from what he read, and his explanation of it to her, she was led to believe that it was simply a receipt, and upon her request her husband signed the paper without reading it. Although Green was a witness in the case, he did not testify about his reading the paper to Mrs. Smith, and, in the absence of any contradictory testimony, it must be assumed that the understanding which Mrs. Smith received from the paper was that which was given to her by his reading. The representations by Green to the plaintiff's wife must be considered as a representation by the defendant to the plaintiff, and the jury were authorized to find that the plaintiff did not understand the contents or purport of the instrument.

4. The request of the defendant that the court instruct the jury that their verdict must be in favor of the defendant, if they should find that the plaintiff knew, or could by ordinary care have learned, that it was the custom of the defendant sometimes to have the hatchway open and sometimes closed, when the plaintiff would have occasion to descend the same in the course of his employment, was properly refused. These facts, if they existed, were only proper to be considered by the jury in determining whether the plaintiff was guilty of contributory negligence, but were not of themselves determinative of that issue.

5. The request of the defendant that special issues be submitted to the jury was addressed to the discretion of the court, and the refusal of the court to grant the request was not the subject of an exception. American Co. v. Bradford, 27 Cal. 360. The judgment and order are affirmed.

We concur: PATERSON, J.; GAROUTTE, J.

(99 Cal. 443)

FRESHOUR, Road Overseer, v. HIHN. (No. 14,941.) (Supreme Court of California. Aug. 31, 1893.) HIGHWAYS-BOUNDARIES-OBSTRUCTION.

1. A pleading described a highway as 40 feet wide, commencing at a certain point named, and following the course and distance of a given line "to the line of average high tide to the bay of M." Held sufficient, the line described being presumed to be the center line, and not a side line, of the road, without direct averment to that effect.

2. Under Act March 31, 1876, § 52, declaring that roads used as public roads for the five years preceding the passage of the act are highways, the public user is the only thing to be considered, without regard to the owner's intention in permitting it.

3. Pol. Code, §§ 2731, 2732, 2734, provide that, if any highway "duly laid out and erected" is encroached on, the overseer may require the encroachment to be removed, by notice to the owner, specifying "the breadth of the highway," and the place and extent of the encroachment, and, if this is disregarded, he must sue to abate the nuisance, and, if successful, may recover a penalty of $10 a day therefor. Held, that said penalty could not be recovered for encroachment on a highway by user, never regularly laid out and recorded.

4. An ordinance of a board of supervisors directing their clerk to record a road as a highway must specify the width of the highway, and not merely its direction by the course and distance of a given line.

5. When the case was set for trial, plaintiff waived a jury, and defendant stated that, while he did not demand a jury, he did not expressly waive it. On the day set for trial a jury was in attendance, and the parties then announced that they had agreed to try the case without a jury. Plaintiff did not pay or become liable for any jury fees. Held, that he could not recover the jurors' attendance fees as costs.

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every day the obstruction remained after he had received notice to remove it. The judgment of the superior court was in favor of plaintiff, and was to the effect that the obstruction complained of be abated as a nuisance, and that plaintiff recover from defendant, in addition to the costs of the action, the sum of $870, the penalty demanded in the complaint, because of defendant's failure to remove the obstruction. The defendant appeals.

1. The objection is made that the complaint is fatally defective in its description of the highway defendant is charged to have obstructed. The complaint alleges that the highway referred to is 40 feet wide, and that it commences at a certain point named, thence following the course and distance of a given line "to the line of average high tide to the bay of Monterey;" but it is not directly averred whether the land thus described is the center or one of the side lines of such road. We think this general description sufficient. When in describing the location of a road the width is given, and but one of its lines particularly described, as in the complaint here, the line so described by its course and distance will be deemed to refer to the center line of the road, in the absence of anything in other parts of the description tending to indicate a contrary intention.

2. The court below found "that the road mentioned and described in the complaint has been traveled and used as such by the public generally, as a route of travel for the ordinary uses and purposes of a public road or highway, for a period of more than twenty years continuously immediately preceding the 1st of May, 1890." This finding was within the issues made by the pleadings, and is a sufficient finding that the road in question was a public highway, under the provisions of section 52 of the act approved March 31, 1876, entitled "An act to establish and maintain public and private roads in the county of Santa Cruz," and which declares that "roads used as public roads for a period of five years unobstructed, next preceding the passage of this act, are roads or highways within the meaning of this act." Under this statute, which defendant concedes is applicable to this case, the use of the road by the public for the period named, without any reference to the question whether the defendant, in permitting such use, intended thereby to dedicate the land used as a public highway, is the controlling fact upon which the right of the public to continue such use is made to rest. Bolger v. Foss, 65 Cal. 250, 3 Pac. Rep. 871; McRose v. Bottyer, 81 Cal. 125, 22 Pac. Rep. 393. Upon the question of fact thus found by the court below there is a substantial conflict in the evidence, and, under the rule which has been often declared here, the finding will not be disturbed by this court.

3. The most important question in the case

relates to the right of the plaintiff to recover the penalty of $10 for each day the obstruction continued after defendant was notified to remove it. This right, if it exists at all, is given by sections 2731, 2732, and 2734 of the Political Code. Section 2731 provides: "If any highway duly laid out or erected is encroached upon by fences, buildings or otherwise, the road overseer of the district may orally, or in writing, require the encroachment to be removed from the highway." Section 2732 provides for the giving of notice to the person causing or owning the encroachment, which notice must specify "the breadth of the highway, the place and extent of the encroachment, and requiring him to remove the same within ten days." And by section 2734 it is provided that "if the encroachment is denied and the owner, occupant, or person controlling the matter or thing charged with being an encroachment refuses either to remove or permit the removal thereof, the road overseer must commence in the proper court an action to abate the same as a nuisance; and if he recovers judgment he may, in addition to having the same abated, recover ten dollars for every day such nuisance remained after notice, and also his costs in said action." The encroachment referred to in this last section is one upon such a highway as is described in the preceding section 2731, viz. a highway "duly laid out or erected." The words "duly laid out or erected," as there used, have reference to the formal and official action which the law enjoins upon those charged with the duty of establishing public highways; and a highway "duly laid out or erected," within the meaning of section 2731 of the Political Code, is one which has been established by the proper officers in the manner prescribed by law. By subdivision 2 of section 2643 of the Political Code it is made the duty of the boards of supervisors of the several counties to "cause to be recorded as highways such roads as have become such by use or abandonment to the public" within their respective counties; and, in our opinion, until so recorded, such a highway cannot be said to have been "duly laid out or erected," so as to authorize a recovery of the statutory penalty given by section 2734 of the Political Code. The only remedy which the public has for an obstruction in a highway which exists only by user is an action to remove the obstruction as a nuisance. Substantially the same conclusion was reached by the court of appeals of the state of New York in construing certain sections of the Revised Statutes of that state relating to penalties for the encroachment upon highways, and containing language very similar to that which is used in the above-mentioned sections of the Political Code. See Doughty v. Brill, *42 N. Y. 612; Talmage v. Hunting, 29 N. Y. 447. And it is not difficult to understand why the legislature deemed it proper to make this distine

tion in regard to the remedies allowed to the public for an encroachment between the case of an encroachment upon a highway established with deliberation and care by officers appointed for that purpose, and one upon a road not formally accepted and recorded, and existing only by reason of dedication or abandonment to the public. In the latter case the exact location of the highway, as well as the fact of its existence, is often a matter of doubt and honest dispute between the citizens and the public, and, until its location and existence have been definitely ascertained and determined in some appropriate mode, it would be unjust to subject the citizen to the extreme penalty given by section 2734 of the Political Code, and which is intended only for the willful encroachment upon a highway, the location and existence of which are matters of public record, and of which all persons must take notice. That it was not the intention to impose this penalty for the obstruction of a highway which is only such by user or abandonment to the public, but has not been recorded as a highway, is also apparent from section 2732 of the Political Code, which requires a notice "specifying the breadth of the highway” to be given to the person charged with the obstruction, before bringing an action to recover such penalty. The giving of the prescribed notice is essential to the right to maintain the action; but, unless the breadth of the highway has been established by some order or ordinance of the board of supervisors, it would not be possible for a road overseer to give the required notice "specifying the breadth of the highway." In the case of a highway by user or dedication, its width is limited by the extent of the actual user or dedication; and in recording such a road the board of supervisors cannot enlarge the actual boundaries of the road so used or dedicated. The board is simply authorized to make a record of the location of the road as it actually exists, for the purpose of perpetuating the evidence of the public right. As said by Bronson, J., in People v. Judges of Cortland Co., 24 Wend. 491: "Both the extent and the fact of the dedication depend on the user, and the public must take secundum formam doni." It follows from what has been said that the complaint here does not state facts sufficient to entitle plaintiff to the penalty recovered by the judgment in this action.

4. The court erred in admitting in evidence the ordinance of the board of supervisors directing the clerk of the board to record as a public highway "that certain road in Soquel road district *

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ing from the village of Soquel to the beach near the wharf of the steamship company." Assuming that this ordinance was meant to refer to the road in controversy here, it is void, because it does not state the width of the road, and describes it only by the course and distance of a given line. In addition to

this, the complaint did not allege the en croachment to be upon a highway duly laid out or established by law.

5. In the memorandum of costs filed by plaintiff there was an item or charge of $49.70 for jury fees, and the defendant made a motion to have the same stricken out and disallowed. The motion was made before judgment, and was denied, and the order may therefore be reviewed on appeal from the judgment. Empire Gold Min. Co. v. Bonanza Gold Min. Co., 67 Cal. 406, 7 Pac. Rep. 810. It appears that when the case was set for trial the plaintiff waived a trial by jury, and the defendant stated that, while he did not demand a jury, he would not expressly waive the same. Upon the day fixed for the trial a jury was in attendance, and the bill of exceptions states that "the parties then announced that they had agreed to try the case without a jury; thereupon the court discharged the panel of jurors, and the case was tried by the court without a jury;" and that the plaintiff did not pay any jury fees, nor incur any liability therefor. Upon these facts the court erred in denying the motion of defendant, The plaintiff neither paid nor incurred any expense because of the attendance of the jury, and we are not aware of any law which entitles him to recover from defendant the amount of the attendance fees of such jurors.

Judgment and order reversed, with directions to the superior court to enter a judgment in favor of plaintiff and against defendant, to the effect that the encroachment described in the complaint be abated as a nuisance, and that plaintiff have and recover from defendant, F. A. Hihn, his costs in the action, amounting to the sum of $167.

We concur: FITZGERALD, J.; McFARLAND, J.

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The fact that part of a lot of potatoes contracted for as "merchantable" have "sprouted a little" does not necessarily show that they are unmerchantable, but, there being evidence that the lot in question were salable for table use or shipment, the question whether the purchaser was justified in refusing to receive them is for the jury.

Department 2. Appeal from superior court, city and county of San Francisco; John F. Finn, Judge.

Action by P. S. Marshall against D. Keefe. From a judgment for plaintiff, defendant appeals. Affirmed.

E. F. Preston, for appellant. Wm. H. Chapman, for respondent.

PER CURIAM. This action was brought by the seller of a lot of potatoes to recover

damages from the purchaser, who refused to receive them when tendered. A jury trial was had, plaintiff recovered judgment, and defendant appeals from the judgment, and from an order denying a new trial. The contract called for Early Rose merchantable potatoes. It is claimed that there was no evidence at all tending to show that the goods tendered were merchantable. In this, we think, after carefully examining the record, the appellant is in error. There is much testimony to that effect. Appellant seems to conclude, because plaintiff's witnesses testified that some of the potatoes had sprouted a little, that it would necessarily follow that they were not merchantable. But this proposition cannot be sustained. That might depend upon how badly they had sprouted, and perhaps upon the time of the year in which they were to be delivered. Some witnesses testified that the potatoes tendered were salable for table use, or, as the witnesses preferred to say, for shipment. It became a question for the jury, and was submitted to them under instructions which are not complained of here. The judgment and order are affirmed

(4 Cal. Unrep. 190)

MOORE v. MOORE et al. (No. 14,337.) (Supreme Court of California. Aug. 31, 1893.) EJECTMENT-POSSESSION AND OUSTER BY DEFENDANT-EVIDENCE- PRACTICE ON APPEAL - TENANTS IN COMMON.

1. In an action in the nature of ejectment, a specification of error that "the evidence showed that defendant M. was not in possession of said premises, or of any part thereof, at the time of the commencement of this action," is insufficient.

2. In an action in the nature of ejectment, where the evidence tends to prove that defendants were in possession of the premises when the action was commenced, an answer denying plaintiff's title and right of possession is sufficient evidence of ouster.

3. A tenant in common cannot, as against his cotenant, give a license to a third person to enter on the land held in common.

4. An exception reading, "To said oral instructions, and each and every part thereof, and to the giving thereof by the court, the defendant then and there duly excepted," is too general.

5. In ejectment by a widow against her husband's administrator for premises which had been set apart by order of court as a homestead to plaintiff and her minor children, absolutely, it appeared that, from the time of defendant's appointment as administrator till the homestead was set apart, defendant collected the rents of the premises, and paid taxes; that two months thereafter plaintiff demanded possession of him, which, she testified, he refused to give; that in his verified statement to the tax collector he included this homestead property; and that he leased part thereof to another. Held. that the evidence justified a verdict that defendant was in possession when the action was commenced.

6. Where a defendant in ejectment is in possession of any part of the premises as tenant of another, it is proper to join the latter as party defendant.

Commissioners' decision. Department 2. Appeal from superior court, Santa Cruz county; James F. Breen, Judge.

Action by Helen M. Moore against Thomas W. Moore and Leonard T. Almstead. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Affirmed. Spalsbury & Burke, Joseph N. Skirm, and Warren Olney, for appellants. Charles B. Younger, for respondent.

VANCLIEF, C. Action in the nature of ejectment to recover possession of an undivided half of a parcel of land situate in the county of Santa Cruz, and containing about 35 acres, which plaintiff claims as a probate homestead. It is alleged in the complaint that the plaintiff is the owner, and entitled to the possession, of the demanded premises; that defendants are in possession, and wrongfully withhold the possession from the plaintiff; that the rents and profits of the land have been and are of the value of $480 per year; and that the plaintiff has sustained damages in the sum of $2,300 by reason of the detention and withholding of the possession. Prayer that plaintiff may recover the land, with rents, profits, and damages. The separate answers of the defendants each "denies that plaintiff is, or ever was, the owner, or entitled to the possession, of an undivided one-half of the real estate described in said complaint, or any part thereof," and specifically denies every other allegation of the complaint, except that it is admitted that the value of the rents and profits have been one dollar per year. The jury returned a general verdict for the plaintiff, and assessed the damages at $847, upon which judgment was rendered in favor of the plaintiff. Defendants appeal from the judgment, and from an order denying their motion for a new trial.

The plaintiff is the widow of William H. Moore, deceased, who left surviving him four minor children by a former marriage, and a son by his marriage with plaintiff was born after his death, and named William H. Moore. The defendant Thomas W. Moore is a brother of the deceased, and administered upon his estate. On the petition of the plaintiff, filed after the birth of her son, William H. Moore, the demanded premises were set apart from the separate estate of her deceased husband by the probate court, as a homestead for the use of the widow and three of said minor children, namely, Charles Moore and Stella Moore, children of the former marriage, and William II. Moore, the son of plaintiff. The order setting apart the homestead was made April 26, 1881, and apportions the homestead as follows: "The undivided one-half part thereof to said widow, Helen H. Moore, and the undivided one-sixth thereof to each of the said minor children of the deceased, to wit, Charles Moore, Stella Moore, and William H. Moore." The effect of this order was determined in the case, Estate of Moore, 96 Cal. 522, 31 Pac. Rep. 584, in which it was held that conceding the order to have

been erroneous, in that it did not limit the duration of the homestead as required by section 1468 of the Code of Civil Procedure, yet, as there had been no appeal from it within the time limited by law, it was not void, and passed absolute title to the widow and the children named, so that the homestead was not subject to distribution on the settlement of the estate. The defendant Thomas W. Moore was a party to that appeal. It appears that Charles Moore was 14 years of age at the time the petition for homestead was filed, (August 2, 1877,) and consequently became of age some time in 1884. The homestead has upon it a large and a small dwelling house, a barn and other outhouses, and an orchard, besides a field of about 20 acres.

1. It is contended for appellants that the evidence is insufficient to justify the verdict that defendants were in possession of the demanded premises at the time of the commencement of the action, and also insufficient to justify a verdict for any damage whatever. The only specifications of deficiency of evidence as to the possession of the defendants are the following: "The evidence showed that the defendant Thomas W. Moore was not in possession of said premises, or of any part thereof, at the time of the commencement of this action," and a similar specification as to the defendant Almstead. This is not a specification of any particular in which the evidence is insufficient to justify the verdict, nor is it substantially equivalent to such specification. In the absence of the specification required by section 659 of the Code of Civil Procedure, the respondent was not required to bring into the statement all the evidence applicable to the issue as to the possession of defendants, nor can it be presumed that the statement contains all such evidence unless it purports to contain all the evidence in the case, which this statement does not. Yet, while I think respondent's point that the specification is insufficient is well taken, it appears that the evidence contained in the statement is amply sufficient to justify the verdict that defendant Almstead was in possession at the time the action was commenced. The defendants, in their testimony, admitted that defendant Moore, as administrator, verbally leased to defendant Almstead the land of the estate adjoining the homestead from October 1, 1884, to October 1, 1885, and again from October 1, 1885, to October 1, 1886. It was proved and admitted by Almstead that during those two years he cultivated the 20-acre field on the homestead, and that his employes occupied the small dwelling and other outhouses; but he and his codefendant, Moore, denied that the latter leased to him any part of the homestead, although two witnesses (Hoff and Bennett) testified that during the years 1885 and 1886, while they were working for him upon the homestead, he told them, severally,

at different times, that he had rented the homestead, except the big dwelling house, from defendant Moore. As to the possession of the defendant Moore at commencement of the action, the evidence is not so clear, yet, I think, tended to prove it. It is not controverted that, from the time of his appointment as administrator (March 4, 1872) until the order setting apart the homestead, (April 26, 1881,) he had at least constructive possession of all the decedent's real estate, including the homestead, and it appears that he collected the rents and paid the taxes during that period. He contested the application for the homestead; the plaintiff not being in possession at the time the application was made, nor at any time since. A part of the order setting apart the homestead is as follows: "It is hereby further ordered and adjudged that the administrator of said estate of William H. Moore, deceased, deliver the possession of the said homestead above described to Helen M. Moore, the petitioner herein." It is admitted that about two months after the order the plaintiff made both written and oral demand of the administrator for possession of the homestead, and she testified that upon such demand he expressly and emphatically refused. She said: "I asked said Thomas W. Moore if he would deliver me possession of the homestead. He said he would be damned if he would do it." He denied this, saying he only refused to deliver the personal property. In his verified statement to the county assessor of property in his possession in the years 1884 and 1886, subject to taxation, he included the land constituting the homestead. I think the testimony, and circumstantial evidence also, tended to prove that he leased to the defendant Almstead so much of the homestead as the latter cultivated and occupied. It was not necessary to constructive possession that the administrator should have personally resided upon or cultivated the homestead. Barstow v. Newman, 34 Cal. 90. And constructive possession of a defendant in ejectment is sufficient to entitle a plaintiff to recover in that form of action. Crane v. Ghirardelli, 45 Cal. 235. And if the defendant Almstead was in possession of any part of the homestead, as a tenant of the administrator, the latter was properly joined as a party defendant. Code Civil Proc. § 379; Gaslight Co. v. Dameron, 67 Cal. 663, 8 Pac. Rep. 595. As to the alleged insufficiency of the evidence to justify the verdict for damages, the specification is sufficient, but in that particular the evidence appears to be sufficient. Two witnesses testified that the rental value of the premises was from $25 to $30 per month, and one that it was $35 per month, and the evidence tended to prove that the possession was withheld more than two years.

2. At request of plaintiff's counsel, the court gave ten written instructions to the jury, to each one of which counsel for de

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