sue upon the common counts, where there is a special agreement, applies only to cases where the contract has been fully performed by the plaintiff. (2) Where the contract, though partly performed, has been either abandoned by mutual consent, or rescinded and extinct by some act on the part of the defendant. Here the plaintiff may resort to the common counts alone for remuneration for what he has done under the special agreement. But, in order to do this, it is not enough to prove that the plaintiff was hindered by the defendant from performing the contract on his part, for we have just seen that in such case he must sue upon the agreement itself. It must appear from the circumstances that he was at liberty to treat it as at an end. (3) Where it appears that what was done by the plaintiff was done under a special agreement, but not in the stipulated time or manner, and yet was beneficial to the defendant, and has been accepted and enjoyed by him. Here the plaintiff cannot recover upon the contract, from which he has departed, yet he may recover upon the common counts for the reasonable value of the benefit which, upon the whole, the defendant has derived from what he has done." The decisions sustaining the points stated in the above extracts are cited in the notes to the section referred to. See, also 2 Smith, Lead. Cas., notes of Wallace to Cutter v. Powell, pp. 47-49, where the rules are clearly and fully stated, and cases cited. In this case there is evidence tending to show that the architect accepted the building; that all other preliminaries were complied with by the plaintiff, and nothing remained but the payment of the money. The pleader, under such a state of facts, could set forth his cause of action under the common counts adopted by him in accordance with the rules above set forth; and under such counts the special contract was admissible in evidence. See Reynolds v. Jourdan, 6 Cal. 109, where it was held that the special contract was admissible under the common counts as an admission of the standard of value, or as proof of any other fact necessary to the recovery, and should be allowed to go to the jury whenever it can aid them in attaining a sound conclusion. See, also,above reference to 2 Smith, Lead. Cas. pp. 47-49 et seq., and cases there cited. Such has always been the course of procedure in this state. The cases will be found in the digests. There was no error in admitting the contract.

The defendants moved for a nonsuit on five grounds. The only one urged in the points of the defendants is that the plaintiff set forth his cause of action on the common counts, and in proof of them introduced the special contract. The other grounds are not adverted to in the points, and will not, therefore, be noticed. We perceive no error in this for the reasons given above. There was evidence tending to prove a full compliance by plaintiff with the terms of the contract, and nothing remained to be done but the payment of the money by the defendants. v.23P.no.2-9

The court therefore did not err in denying the motion for a nonsuit.

The defendants attack several instructions given by the court below; and here it may be observed that the decision on the former appeal became the law of the case, and must be always applicable as long as the facts presented in the case appear to be the same. Jaffe v. Skae, 48 Cal. 543. The cases on this point are cited in the concurring opinion of the writer in Sharon v. Sharon, to which reference may be had. 79 Cal. 633, 22 Pac. Rep. 26, 131. On the former appeal the judgment and order were reversed on the authority of Loup v. Railroad Co., 63 Cal. 97. The opinion in the case is simply a statement of the reversal on the authority of the case cited. See 11 Pac. Coast Law J. 277. In Loup v. Railroad Co., just cited, the reversal was in consequence of a failure to aver the estimates of the engineer as provided for in the contracts, as preliminary to payment, or legal cause for the non-production of such estimates; also, on a failure of proof of the matters just referred to. In the complaint on the former appeal there was a lack of averment that the buildings when completed had been accepted by the architect, and of a compliance with other preliminaries as to receipted bills; and for this lack, we presume, the judgment and order were reversed, and the cause sent back for a new trial.

The defendants made several requests for instructions which were refused by the court, and exceptions were reserved. They specify as erroneous requests numbered 1, 2, 3, and 4. Objections are also made to the charge of the court. On examination of these objections, we are of opinion that the court did not err in refusing the requests, and that the charge to the jury was a fair exposition of the law applicable to the case as presented on the trial. In relation to the requests for instructions, we remark that there was evidence before the jury from which a waiver of the matters stated in the request might have been inferred. We refer to what occurred between plaintiff and Bordwell, in presence of defendants, at Hassett's office, a few days after the 19th of December, 1876, and the occurrence on the next day at Bordwell's office. These matters will be found in the detailed statement. As a waiver of the matters stated in the requests might have been inferred by the jury from the evidence, it would have been erroneous to give the requested instructions, which omitted all reference to a waiver, and asked that a verdict might be rendered on the facts stated in the requests in favor of defendants. This would have withdrawn the evidence bearing on the point of waiver from the consideration of the jury, and would have directed a verdict for defendants on a partial statement of the facts bearing on the points presented by the requests for their determination. This would have been error, and violative of the just rule laid down in Gallagher v. Williamson, 23 Cal. 332, approved and followed

in Barker v. State, 48 Ind. 167, that where a court instructs a jury upon what state of facts they may find a verdict for a party the instruction should include all the facts in controversy material to the right of plaintiff or defense of defendant. The material point as to waiver was left out in the requested instructions, in derogation of plaintiff's right to have it submitted to the jury. We think the evidence tends to show that the placing of the extra work set up in the third count in the contract was in effect waived by the conduct of the parties, and that hence the failure to put it in the contract is no obstacle to a recovery of it. The charge of the court does not in any manner violate or contravene the rule as to the law of the case.

As to the statute of limitations, which was pleaded as above stated, to the first two counts, and not pleaded as to the third count of the complaint: One of the grounds on which defendants moved for a nonsuit was "that the proof shows that the claim is barred" by section 337 of the Code of Civil Procedure. and also by section 339, Id. These sections are portions of the statute of limitations. Conceding that the cause of action set forth in the first two counts, to which the statute was pleaded, were barred, the statute was not pleaded to the third count, and therefore the bar could not, on a motion for a nonsuit, be urged against it. As the word "claim," used in the grounds, includes the whole claim set forth in the three counts of the complaint, and the statute, by reason that it was not pleaded, could not be urged against the third count, the trial court did not err in denying the motion for a nonsuit. The action, in its entirety, could not be held to have been barred; and the court would have erred if it had granted the motion.

We cannot see that the point as to the bar of the statute of limitations can be urged or presented by the defendants on the record before this court. The presentation of it on the motion for a nonsuit has already been considered and disposed of. There is no question of this kind presented on any exception to the charge of the court. The counsel for defendants asked no direction to the jury on this point to which, if refused, he might have reserved an exception. The court did not direct the jury at all in regard to it. The failure of a court to charge on a point, if not asked to do so, is not error. If counsel desire to have the direction of the court on a point, he must request it; and, if refused, he must reserve an exception to the refusal, and present the point in this court for review on a statement or bill of exceptions. This must be done, or the appellant cannot urge it for the consideration of this court as error in the ruling of the court. In such a state of the case, there has been no ruling by the court; and hence there can be no exception, and no consideration of an exception, here. Let it be conceded that in this case the evidence was insufficient to justify the verdict by reason of the fact that the causes of action

set forth in the first two counts were barred by the statute of limitations. There are not in the statement any such specifications of insufficiency of the evidence, and they cannot, for that reason, be considered here. We have examined the record, and find no error in it. The judgment and order are therefore affirmed.

We concur: Fox, J.; MCFARLAND, J.; SHARPSTEIN, J.; PATERSON, J.; WORKS, J. Rehearing denied.

(82 Cal. 497)

THOMPSON et ux. v. Southern Cal. M. K. Co. (No. 13,382.)

(Supreme Court of California. Jan. 9, 1890.) DEEDS-DESCRIPTION.

1. A deed to a railroad company of a right of way "along the line as surveyed and laid out" by the company's engineer is not void for uncertainty where it appears that when the deed was executed the line of the road had been surveyed and distinctly marked by stakes stuck in the ground, and that subsequently the road was constructed following the exact line of the survey.

2. Extrinsic evidence is always admissible to explain the calls of a deed for the purpose of applying them to the subject-matter, and thus to give effect to the deed.

Commissioners' decision. Department 2. Appeal from superior court, San Bernardino county; JAS. A. GIBSON, Judge.

Rowell & Rowell, Curtis & Otis, and John Brown. Jr., for appellants. H. C. Rolfe, for respondent.

The

BELCHER, C. C. The plaintiffs seek by this action to obtain a decree restraining the defendant from going upon, or in any way interfering with, two lots of land, described as lots 2 and 5, in block 32, in the city of Colton, San Bernardino county, and to recover damages for past trespasses. plaintiffs claim ownership of the lots, and the defendant claims a right of way over the same for the operation of its railroad, known as the "Motor Road. At the trial, the defendant, in support of its claim of a right of way over the lots, offered in evidence a deed made by plaintiffs to defendant, with the map attached thereto, marked "Exhibit A." That part of the deed which describes the property conveyed reads as follows: "A perpetual right of way over and across lots 2 and 5, in block 32, in said city of Colton, according to the Colton Land & Water Company's survey, for the purpose of constructing, maintaining, and operating said motor road. Such right of way to be along the line as surveyed and laid out by H. C. Kellogg, civil engineer of said corporation, being a distance in length of eleven hundred and thirteen feet, more or less, and running in a northerly and southerly direction, a map of which is hereto attached, and made a part hereof." The plaintiffs objected to the deed being received in evidence on the ground that it was void for uncertainty, and therefore irrelevant and immaterial. The defendant then proposed to introduce further evidence showing that

when the deed was executed the road had | been commenced, and the line of the right of way claimed under the deed, and now occupied by the road, had been surveyed and designated by stakes stuck in the ground so that it could be easily traced. The court thereupon overruled the objection, and the plaintiffs reserved an exception.

H. C. Kellogg was then called by defendant as a witness, and, having testified that he was by profession a civil engineer and surveyor, and that he made the map attached to defendant's deed, proceeded as follows: "Question. You may state whether a survey or line was ever laid out from which the map was made, or which that map was made to designate. Answer. That map was made from an actual survey on the ground. Q. You may state whether or not that line was marked on the ground. A. Yes, sir; the line was marked on the ground by the stations every 100 feet. The stations were stakes eighteen inches long and an inch square, and were brought from a definite starting-point upon the center line of the survey, the line marked red on the plat. Q. You know where the road of defendant now exists, across lots 2 and 5, in block 32, of the city of Colton, the lots designated on Exhibit A? A. The road was constructed, and now exists, on the line indicated in red on this plat, in accordance with the survey. The center line of the railway is on the red line, -in the center of the line marked yellow. Q. If you were an entire stranger to this deed, Exhibit A, and the map and locality of the ground, could you, being shown this deed with the map, and being told where the line was located by H. C. Kellogg,-could you locate the right of way purported to be conveyed by this deed? A. Yes, sir." The witness further stated that "that survey was laid out, and the cross-sections were made, before the deed was executed." And on crossexamination the witness said: “As an engineer, I can take that deed-supposing I knew nothing in regard to the exact location, and had never seen it-from that instrument, as a civil engineer, I can locate that road under the description. Q. Tell me from the in which the instrument reads-mind you, you never saw it-take it from the instrument itself, and its description; take that map, not knowing anything about it, and tell me how, and by what means, you could locate the road. A. I certainly could locate it. The deed was made after the first station survey was made. Q. Suppose there were no marks on the ground to show where the survey was made,-there were no marks left of it at all that Captain Topp had made the survey, and here was a description of the premises intended to be conveyed, and where it was to be, that is all you knew about it. Could you take that instrument and diagram, and make a survey of the road? A. I could, by inquiring from parties that knew something about the survey. If the points were all out of the way, I could have nothing to

|

start from; but, as a matter of fact, I made the survey, and put the stakes, and if any of the stations were left I could easily make the survey."

J. F. Sublette was also called by defendant as a witness, and testified: "My business is railroading, and was such in August, '88. At that time I was constructing track,-laying the line on the Southern Motor Company road, the Southern California Motor Road Company. I am familiar with this road where it goes across the lands of plaintiffs in this action, Albert Thompson and wife, in the city of Colton. Question. You may state whether you ever saw anything to indicate the line of that road as laid out by an engineer. Answer Yes, sir; I saw the stakes drove,--center stakes. The line of the road as now constructed, with reference to the line run out and marked by these stakes spoken of, run to the stakes that were drove there. It ran to them, the center stakes, I mean,- ran through them. The line of stakes occupied the center of the road-bed."

At the conclusion of the trial the court found the facts, and rendered judgment, in favor of the defendant; and from this judgment, and an order denying them a new trial, the plaintiffs appeal.

The contention of appellants is that the deed was void for uncertainty, and that the explanatory evidence was inadmissible, and, if admissible, was insufficient to remove the ambiguity of the deed. We do not think this contention can be sustained. It is true that a deed must so describe the land sought to be conveyed thereby that it can be identitied, but that is certain which can be made certain. Civil Code, § 3538. And extrinsic evidence is always admissible to explain the calls of a deed for the purpose of their application to the subject-matter, and thus to give effect to the deed. Reamer v. Nesmith, 34 Cal. 624. In construing a doubtful description in a grant, the court must assume as nearly as possible the position of the contracting parties, and consider the circumstances of the transaction between them, and then read and interpret the words used in the light of these circumstances. Truett v. Adams, 66 Cal. 218, 5 Pac. Rep. 96. Now, if we assume the position of the contracting parties, and consider the circumstances of the transaction, we shall see a railroad in process of construction by the defendant. The proposed line of the road extends across the plaintiff's lots. The defendant is desirous of obtaining a right of way over the lots for its road. Without objection, its engineer has gone upon the lots, and has surveyed and distinctly marked, by stakes stuck in the ground, the line of the road. A map of this survey has been made, and is before the parties. Under these circumstances the deed in question is made, granting a right of way over the lots for the construction and operation of a railroad, "such right of way to be along the line as surveyed and laid out" by the engineer of the grantee. The road was then

constructed across the lots, following the exact line of the survey. Looking at the transaction in the light of these circumstances, we think that the rulings of the court were proper, and its conclusions correct. The pleadings were sufficient, the extrinsic evidence was admissible, and the deed was not void. We therefore advise that the judgment and order be affirmed.

We concur: FOOTE, C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(3 Cal. Unrep. 209)

HUTCHINSON v. MCNALLY et al. (No. 12,579.) 1

(Supreme Court of California. Jan. 1, 1890.)

EJECTMENT-PLEADING-HOMESTEAD.

1. Where the complaint in ejectinent simply sets forth a deraignment of title, and then alleges i that "while plaintiff was the owner, and entitled to the possession, as herein before mentioned and set forth, the defendant entered," the allegation as to ownership will be disregarded, as stating a mere conclusion.

2. Where the complaint alleges that the land in controversy was set off as a homestead to the widow of a deceased owner, it must state whether the land was set off in fee or for life, since an assignment of a homestead to a widow in fee out of her deceased husband's estate, though erroneous, is conclusive unless appealed from.

Commissioners' decision. Department 1. Appeal from superior court, Alameda county. T M. Osment, for appellant. Charles F. Hanlon, for respondents.

HAYNE, C. Ejectment. Judgment for defendants upon demurrer to the complaint. Plaintiff appeals. The complaint sets forth a deraignment of title, and then alleges that "while the plaintiff was the owner, and entitled to the possession, as hereinbefore mentioned and set forth," the defendant entered, etc. From the manner in which this statement as to ownership is put, it is evidently a mere conclusion, referring to, and limited by, the deraignment, and is therefore to be disregarded. Turner v. White, 73 Cal. 300, 14 Pac. Rep. 794; People v. Reed, 22 Pac. Rep. 475.

Then does the deraignment show a right of recovery in the plaintiff? The facts alleged are in substance as follows: In May, 1878, one Esther C. C. Hutchinson, who was the wife of Charles C. Hutchinson, declared a homestead upon the property in controversy, which was the separate property of the husband. In the following June the husband died, leaving a will, which was admitted to probate, and by which the property was devised to the plaintiff. In April, 1880, the proper court made an order "setting off said homestead to Esther C. C. Hutchinson, surviving widow of the decedent." In 1881 the widow died. The case is very like Gruwell v. Seybolt, 22 Pac. Rep. 938, (No. 12,072, filed December 9, 1889.) There it was held 1 Reversed in banc. See 24 Pac. 1071, 85 Cal. 619.

that while it was erroneous to set off a homéstead selected out of the separate property of the decedent to the widow "absolutely, as her sole and separate property," yet that the error was to be corrected by appeals, and that if the order was not appealed from it was conclusive. Under this decision it is very material to know what was the purport of the order setting off the homestead. Did it purport to set it off to the widow in fee, or only for life, or for a less period? The complaint is silent in this respect. It simply says that the homestead was set off to the widow. This ambiguity was pointed out by special demurrer. The specification of the demurrer was that "it does not appear therefrom whether or not the order setting aside the property to E. C. C. Hutchinson set apart the property to her in fee or for life." This demurrer was sustained, and we think properly so; and, the plaintiff having elected to stand upon his complaint, we advise that the judgment be sustained.

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

PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.

(82 Cal. 604)

WITKOWSKI et al. v. HERN et al. (No. 13,425.)

(Supreme Court of California. Jan. 27, 1890.) CONSTABLES-BOND-APPEAL-PLEADING-WAIVER OF OBJECTION.

1. A constable, and the sureties on his official bond, are liable to the owner of property, seized under a proper writ, for damages thereto, while in bis custody, occasioned by his carelessness or negligence.

2. There is no implied exception to an order denying a nonsuit. as it is not an appealable order. 3. The objection to an amended complaint that it contains a new cause of action arising after the institution of the suit, is waived by an answer thereto.

Commissioners' decision. Department 1. Appeal from superior court, Tulare county; WILLIAM W. CROSS, Judge.

E. W. Holland, for appellants. J. S. Clack and W. B. Wallace, for respondents.

FOOTE, C. This action was brought against a constable, his sureties on his official bond, and two other persons, John McGinley and F. M. Shultz, for damages resulting from the carelessness of the defendant, as such officer, in not preserving and taking care of the personal property of the plaintiff, P. H. Nelson, (now dead,) so that it became damaged. The cause was revived after the death of Nelson in the name of his executors, S. Witkowski and Albert Nelson, and upon the overruling of a demurrer filed to the third amended complaint the defendant answered; and the cause was tried before a jury. motion for a new trial was denied, except as to McGinley and Shultz, and the jury returned a verdict for the plaintiff in the sum of $300 against the constable, Hern, and his

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