MEMORANDUM CASES.

[Civ. No. 1314. Third Appellate District.-March 20, 1915.] D. P. NARVAEZ, Respondent, v. BOARD OF POLICE AND FIRE COMMISSIONERS OF SAN JOSE et al., Appellants.

MANDAMUS-PROCEEDING FOR SALARY AND REINSTATEMENT AS POLICE OFFICER.-Judgment reversed on the authority of Humburg v. Board of Police and Fire Commissioners of the City of San Jose, ante, p. 6.

APPEAL from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial. John E. Richards, and William A. Beasley, Judges.

The facts are similar to those stated in the opinion in Humburg v. Board of Police and Fire Commissioners of the City of San Jose, ante, p. 6.

John W. Sullivan, City Attorney, for Appellants.

J. C. Black, for Respondent.

BURNETT, J.-For the reason stated in the decision filed this day in Humburg v. Board of Police and Fire Commissioners of the City of San Jose et al., (Civ. No. 1313), ante, p. 6, [148 Pac. 802], the judgment is reversed.

Chipman, P. J., and Hart, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on April 19, 1915, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 17, 1915.

[Civ. No. 1315. Third Appellate District.-March 20, 1915.]

L. C. DE CARLI, Respondent, v. BOARD OF POLICE AND FIRE COMMISSIONERS OF THE CITY OF SAN JOSE et al., Appellants.

MANDAMUS - PROCEEDING FOR SALARY AND REINSTATEMENT AS POLICE OFFICER.-Judgment reversed on the authority of Humburg v. Board of Police and Fire Commissioners of the City of San Jose, ante, p. 6.

APPEAL from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial. John E. Richards, and William A. Beasley, Judges.

The facts are similar to those stated in the opinion in Humburg v. Board of Police and Fire Commissioners of the City of San Jose, ante, p. 6.

John W. Sullivan, City Attorney, for Appellants.

J. C. Black, for Respondent.

BURNETT, J.-On the authority of Humburg v. The Board of Police and Fire Commissioners of San Jose et al., (Civ. No. 1313), ante, p. 6, [148 Pac. 802], this day decided, the judgment herein is reversed.

Chipman, P. J., and Hart, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal. on April 19, 1915, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 17, 1915.

[Civ. No. 1555. First Appellate District.-April 21, 1915.]

F. DEPAVO et al., Respondents, v. N. RIZZO et al., Appellants.

VENDOR AND VENDEE CONSTRUCTION OF CONTRACT.-Judgment and order denying a motion for a new trial reversed on the authority of Depavo v. Rizzo, ante, p. 200.

APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. Wm. H. Donahue, Judge.

The facts are similar to those stated in the opinion in Depavo v. Rizzo, ante. p. 200.

W. E. Rode, and Rose & Glidden, for Appellant Elizabeth Piepenberg.

Stetson & Koford, for Appellant N. Rizzo.

Aldrich & Gentry, for Respondents.

THE COURT.-This is an appeal from the judgment by the defendant Elizabeth Piepenberg and from an order denying her motion for a new trial.

The facts are the same as in the case bearing the same name as the present, ante, p. 200, [149 Pac. 793], but numbered 1494, this day decided. Both appeals are from the same judg ment, but taken by different defendants and by different methods. The points here urged in support of the appeal are there considered and decided, and the conclusion reached that the case should be reversed. For the reasons there given the judgment against this appellant should also be reversed, as also the order denying her motion for a new trial, and it is so ordered.

[Civ. No. 1335. Third Appellate District.-May 5, 1915.]

O. F. WESTPHAL, Appellant, v. H. C. FINKLER et al., Respondents.

WATER-RIGHTS-ACTION TO DETERMINE.-In this action to determine certain water-rights, the judgment is affirmed upon the authority of the decision in Robertson v. Finkler, ante, p. 322.

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.

Carroll Cook, and William Hoff Cook, for Appellant.

Ross & Ross, for Respondents.

CHIPMAN, P. J.-By stipulation this case was heard and decided in the lower court upon the evidence submitted in Robertson v. Finkler. The questions involved in Robertson v. Finkler (Civ. No. 1334), ante, p. 322, [149 Pac. 784] this day decided, are identical with the questions raised in this case and our decision in that case is determinative of this case, Westphal's interest in Rock Spring was one-sixth and is not disputed. He claimed, however, as did Robertson, that the water developed above the spring was part of the water of the spring. He failed, as did Robertson, in establishing his contention.

Upon the authority of the decision in Robertson v. Finkler, the judgment is affirmed.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 2, 1915.

INDEX-VOL. 27.

ABATEMENT. See Negligence, 11, 12.

ACCORD AND SATISFACTION.

CHECK IN FULL SETTLEMENT OF ACCOUNT SUBSEQUENT CONDUCT OF
PARTIES. An accord and satisfaction between the parties to a dis-
puted account is not established by the acceptance and cashing of a
check given in full settlement of the account, where the note which
accompanied the check stated that the sender had no personal knowl-
edge regarding the transaction, but relied on an inspection of its
books of account, which seemed correct, and the recipient of the
check did not apply the payment as closing the account, but merely
gave the sender credit for it on its books, and thereafter negotia-
tions looking to a settlement of the account were had between the
parties. (Duncan v. F. A. Hihn Co., 152.)

ACCOUNT. See Accord and Satisfaction; Account Stated; Estates of
Deceased Persons, 4, 5.

ACCOUNT STATED.

1. BUILDING CONTRACT-ASSIGNMENT-WHEN ACCOUNT NOT STATED.—
An account stated is not established as between the owner of a build-
ing and a bank to whom the contract for the construction of the
building had been assigned as security for moneys advanced to
enable the contractor to complete the building, as to the final pay-
ment of twenty-five per cent due under the contract without regard
to the claims that might be made upon it by materialmen, sub-con-
tractors or laborers, by the statement of the authorized agent of the
owner to the vice-president of the bank that such reserved payment
would not be made to the contractor, but would be held until thirty-
five days after the completion and acceptance of the building, as
the building contract expressly provided, and which also provided
that the payment should not be made until satisfactory proof had
been made that the building was free from liens. (Lowry v. Law,
483.)

2. ACCOUNT STATED WHAT CONSTITUTES.-To constitute an account
stated there must be an agreement, express or implied, between
the parties as to the correctness of the items of the account and
that the balance struck is correct, together with a promise, express
or implied for the payment of such balance. (Id.)

3. COUNTERCLAIM-OMITTED WORK.-In an action by the bank against
the owner to recover such final payment without regard to the claims
of lienors, a counterclaim based upon omitted work may be set up
as an offset to a claim for extra work. (Id.)

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