He denied that he had made any filing on said land or that any one else had done so in his behalf or at his suggestion.

At the commencement of the trial the defendant asked leave to file a supplemental answer in which he desired to set forth certain facts showing that the land covered by the relinquishment in question was held by a false and fraudulent filing by one Wyatt in the fictitious name of Grant Lincoln. Defendant claims that the court erred in refusing to allow the filing of this supplemental answer, and in refusing to allow defendant to put in evidence showing that plaintiff had filed on more government land than he was allowed to under the federal law.

The record does not show any sufficient reason why the proposed supplemental answer had not been filed before the case was set down for trial, and it cannot be said that the court in any way abused its discretion in refusing to allow such answer at the time when presented. As applied to the issues raised upon the complaint and answer on file herein, the court ruled correctly upon the matters of evidence above mentioned. Furthermore, no record evidence was offered by the defendant in connection with his proposed testimony concerning filings made by the plaintiff on government land. The objection that the testimony as offered was incompetent was a valid objection which was correctly sustained.

The court's finding that after the filing by defendant of the relinquishment the said land was filed upon by another person is not sustained by the evidence, but that fact is not material to the case. The record herein sufficiently establishes that the plaintiff had filed upon this land; that he executed a relinquishment in form sufficient to release his claim so that the land could be filed upon by some other qualified person; that he delivered the relinquishment to defendant on the terms noted in the written memorandum; that the defendant converted the document to his own use by filing the same in the government land-office without permission of the plaintiff. Upon these facts the plaintiff was entitled to judgment for the value of the relinquishment, and the only question remaining is whether or not that value was five hundred dollars. The evidence as to this value is very slight, but it is uncontradicted and is sufficient to support the finding. In Lehmann v. Schmidt, 87 Cal. 15, 22, [25 Pac. 161, 162], where a factor had received property of his principal

to be sold at a fixed price and the factor had converted the property to his own use, the court said that, "under these circumstances, having converted it to his own use, we think the price stipulated in the agreement is some evidence of the value of the property at the time of the conversion.'

The judgment and order denying defendant's motion for a new trial are affirmed.

James, J., and Shaw, J., concurred.

[Civ. No. 1501. First Appellate District.-March 25, 1915.] MENDEL BERMAN, Respondent, v. BYRON RUTLEY, Appellant.

CONTRACTS AGREEMENT TO FORM PARTNERSHIP ABANDONMENT-ACTION TO RECOVER MONEY ADVANCED-CONFLICTING EVIDENCE-FINDINGS CONCLUSIVE ON APPEAL.-In this action to recover certain money loaned by plaintiff to defendant under a certain agreement contemplating the formation of a partnership between plaintiff and defendant which provided that the money should be repaid to plaintiff if the partnership were not formed, it is held that, as the evidence was conflicting as to what occurred between the parties subsequent to the execution of the agreement, the findings of the trial court in favor of the plaintiff will not be disturbed on appeal.

APPEAL from a judgment of the Superior Court of Alameda County. J. D. Murphey, Judge presiding.

The facts are stated in the opinion of the court.

L. D. Manning, for Appellant.

Lucius L. Solomons, for Respondent.

THE COURT.-This is an appeal from a judgment in favor of plaintiff for the sum of $1769.15, alleged to be due according to the terms of a written contract between the parties.

The facts of the case which are relied upon to sustain the findings of the court are these: On the first day of May, 1912, the plaintiff and defendant entered into a written agreement, which recited that the defendant was the holder of a lease

upon certain premises in the city of Oakland, in which he was to open a clothing store dealing in men's clothes, and to stock said store with a certain lot of goods which he had theretofore ordered from the Imperial Clothing Specialty Co., a corporation of New York; that the plaintiff was an experienced clothing salesman, whose services the defendant was desirous. of procuring as manager of his said store for the ensuing year with a view to a future partnership between them. The agreement further recited that the defendant was presently to receive from the Imperial Clothing Specialty Co. a bonus of five hundred dollars for handling their goods, and that he was also to borrow one thousand five hundred dollars from the plaintiff, which sums he was to use in the fitting up of the store and in the conduct and carrying on of the business; that the one thousand five hundred dollars so to be received from the plaintiff was not to be repaid by the defendant in the event that a copartnership was entered into between them within the period of a year; but that in the event that no such partnership was entered into the plaintiff was to be repaid the same, with interest at the rate of six per cent per annum from the date of its advancement. It was also agreed that the plaintiff was to receive the sum of one hundred and fifty dollars a month salary from the date of the agreement.

The testimony adduced upon the trial was chiefly that of the parties themselves, and was radically in conflict as to what had occurred subsequent to the execution of this agreement. The trial court, however, chose to accept the plaintiff's statement as to the relation and dealings and differences of the parties during the months immediately succeeding the making of their contract. The testimony on the part of the plaintiff so accepted by the court was in substance to the effect that, owing to some misunderstanding with the Imperial Clothing Specialty Co. and possibly to the unsatisfactory quality of their first consignment of goods, the defendant did not receive from that company its promised bonus, and did not handle their goods, and in fact never did open the store; but, owing to his capricious and procrastinating ways, kept the plaintiff at his beck and call for eleven months, paying him his stipulated salary with a fair degree of regularity during that time, but finally abandoning the enterprise and disposing of the leasehold of the store. During this period repeated attempts were made to arrive at a settlement of the mutual obligations

and differences of the parties arising out of their agreement and subsequent conduct, but without avail, until finally, when the enterprise was abandoned and the design of forming a partnership given up, the plaintiff demanded the return of his one thousand five hundred dollars with accrued interest, and the payment of the small remaining balance of his salary, which being refused, this action was brought to recover those sums, aggregating the amount for which judgment was given. As heretofore stated, the testimony of the plaintiff and the defendant is in sharp conflict upon many of the foregoing matters; and practically the entire brief of appellant is devoted to a discussion of those disputed issues of fact. The trial court, however, resolved those conflicts in favor of the plaintiff, and with its discretion in so doing this court will not interfere.

We do not discover in this record any legal question which requires consideration.

Judgment affirmed.

[Civ. No. 1464. First Appellate District.-March 25, 1915]. C. R. LAURENCE, Respondent, v. PACIFIC OIL AND LEAD WORKS, Appellant.

CONTRACTS-SALE OF COCOANUT OIL-CONSTRUCTION OF CONTRACT-PRESENT SALE. Where a written contract recited that one of the parties "have sold" and that the other party "have bought" certain oil covered by the contract, and in an action against the seller to recover a certain amount on account of sales of the oil to certain customers it averred in the complaint that the defendant "sold" the oil in question, and in response to this averment, the defendant expressly admitted that it had "sold" the oil mentioned in the complaint and said "sale" was made in San Francisco, and in support of these averments and admissions the manager of the defendant testified "that the oil involved in this suit had been by us sold to the Cocoanut Products Co. (one of the parties to the contract); they had bought it on April 25, 1911. It was their oil. They bought it and we had sold it," it cannot be successfully contended on appeal for the first time that the transaction did not amount to such a complete purchase and sale as to pass the title to the oil. ID. RESALE OF OIL-AGENCY-RIGHT TO RECOVER OVERAGE-CONSIDERATION.-In such a case where the original purchaser sold to the plain

tiff a portion of the oil deliverable under its contract, which was still in the hands of the original seller, and the latter agreed that upon sales by plaintiff of the oil to various of his customers at an added price it would deliver the oil directly to customers, as ordered by plaintiff, and collect from them the price at which he had sold it to them, and pay over to him the overage, to wit, the excess between the price at which he had bought it and the price at which he sold it to his customers, the contention that there was no consideration for the latter agreement between the plaintiff and the original seller cannot be maintained, as the transaction amounted to an agency between the parties, and the original seller cannot be heard to question the consideration moving to it for undertaking such agency after it had received plaintiff's money through its exercise.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. E. P. Mogan, Judge.

The facts are stated in the opinion of the court.

Pillsbury, Madison & Sutro, and A. D. Plaw, for Appel

lant.

Powell & Dow, for Respondent.

RICHARDS, J.-This is an appeal from a judgment in favor of the plaintiff for the sum of $687.13.

The facts out of which this action arose are substantially these: On the twenty-fifth day of April, 1911, the Pacific Oil and Lead Works, the defendant herein, made a written contract with the Cocoanut Products Company of Portland, Oregon, which recited that the Pacific Oil and Lead Works had sold, and the Cocoanut Products Company had bought, four hundred tons of a certain grade of cocoanut oil, to be shipped from April 25th to October 31st 1911, in quantities to suit the purchaser. In the month of August, 1911, the Cocoanut Products Co. found itself unable to use a portion of the oil which it had agreed to purchase, and since the market price of such oil seemed to be declining, the latter company concluded to sell the excess of the oil deliverable to it under its aforesaid contract. The plaintiff is a commission merchant and broker. His first transaction with the Cocoanut Products Co. consisted in his sale for them of seventy-five barrels of this oil upon a brokerage basis. Shortly after this