and his demurrer was overruled. After trial the court allowed certain of these set-offs, and gave judgment for plaintiff only for the balance due on the note, after deducting the set-offs. Plaintiff appeals from the judgment. The only question presented is, was the instrument sued on a negotiable note? The instrument would be negotiable, and, in the hands of an indorsee before maturity, not subject to any equities of the maker against the original payee, if it did not contain the following clause: "Should suit be commenced, or an attorney employed, to enforce the payment of this note, I agree to pay the additional sum of 5 per cent. on principal and interest accrued as attorney's fees in such suit." The court below held that this clause rendered the note non-negotiable, and we think that the court was right in so holding. a mistake in law than in case of a mistake as | Plaintiff demurred to this part of the answer, to matter of fact. The exercise of the power conferred by section 473 of the Code, however, should appear to have been "in furtherance of justice," and the relief, if any, should be granted upon just terms. In this case it appears that the trial court was justified, by the showing made, in believing that the stipulation was entered into by plaintiff's attorney inadvertently and by mistake, without the knowledge or consent of plaintiff; that it admitted material averments of the answer which were not true; and that the effect of the stipulation would be to prevent a trial of the case upon its true merits, and that the trial would thereby result in injustice to the plaintiff. The terms upon which the relief was granted do not appear to have been unjust. There is no complaint that the defendant was not allowed sufficient time and opportunity to prove the allegations of her answer, and it does not appear that $100, paid her by the plaintiff, was not sufficient compensation for all detriment suffered by the postponement of the trial. Therefore it does not appear that the setting aside of the stipulation was an abuse of the discretionary power of the trial court. When one man promises to pay money to another in the future, if he puts that promise in the form of a negotiable paper, he gives to the promise characteristics which do not belong at all to ordinary indebtedness. If A. merely promises, either orally or by common writing, to pay B. $1,000 at the expiration of 10 months, and during that time B. becomes indebted to A. on other transactions in the sum of $500, the latter sum can be set off against the former; and it can be so set 4. The finding that the deed from Marion Thompson to J. W. Ward was not made for or on behalf of plaintiff, and that J. W. Ward never held the title to the property described in said deed for plaintiff as security or other-off against an assignee of B. if it accrued wise, is justified by the positive testimony of J. W. Ward. I think the judgment and order should be affirmed. We concur: BELCHER, C. C.; HAYNE, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed. (82 Cal. 636) ADAMS v. SEAMAN et al. (No. 13,443.) (Supreme Court of California. Jan. 25, 1890.) PROMISSORY NOTE-NEGOTIABILITY. Under Civil Code Cal. § 3088, which provides that "a negotiable instrument must be made payable in money only, and without any condition not certain of fulfillment," a promissory note containing a provision for 5 per cent. attorney's fees on the accrued principal and interest, in case suit should be brought for its enforcement, is not negotiable. before notice of assignment. But, if the promise be made in the shape of a negotiable promissory note, then, if B. indorse the note before the expiration of the 10 months to a third party, the latter can compel A. to pay him the whole amount of the note, no matter how many set-offs he may have against B. In order, however, for this to be so, the note must clearly comply with the requisites of negotiable paper. And one of the main requisites, in addition to negotiable words, such as payable "to order" or "bearer," is absolute certainty as to the amount of money to be paid; a certainty which must appear on the face of the instrument. No part of the amount must depend on any contingency which may or may not happen, or upon the proof of any fact other than the genuineness of the instrument itself. There have been many conflicting decisions in other states on the question whether, at common law, a promise in a note for attor Department 2. Appeal from superior court, San Diego county; GEORGE PUTER-ney's fees, in case suit be brought, destroys BAUGH, Judge. Hunsaker & Britt, (Haggin, Van Ness & Dibble, of counsel,) for appellant. F. W. Burnett, for respondents. the certainty which negotiable paper must have. The point has never been conclusively determined by this court; but in Chase v. Whitmore, 68 Cal. 548, 9 Pac. Rep. 942, the opinion of the court contains the following language: "Besides, the note provided for the payment of a reasonable attorney's fee, and that, under our Code, destroyed its In other states the rule is not uniform upon this subject; some of them holding that such a provision does, and others that it does not, destroy the negotiable character of the instrument." It is MCFARLAND, J. This action was brought by plaintiff upon what he alleges to be a negotiable promissory note made by defendant Seaman to the order of one O. S. Hub-negotiability. * * bell, and indorsed and assigned by Hubbell to plaintiff before maturity. Seaman, in his answer, pleads as set-off certain debts due him from Hubbell before the assignment. * contended by appellant that Chase v. Whitmore is not conclusive authority on the point, because in that case the assignment was made after the maturity of the note, and the language quoted was not necessary to the decision, and therefore dictum. This is true; but, as the point appears to have been quite elaborately considered, and as the opinion was concurred in by the whole court in bank, what was said is entitled to great weight, if it be not taken as authority in the strict sense. The language there employed was directly based on the provisions of our Civil Code upon the subject; and we think that it correctly applied the meaning of the Code to the question under discussion. Section 3087, art. 1, c. 1, tit. 15, Civil Code, is as follows: "A negotiable instrument is a written promise or request for the payment of a certain sum of money to order or bearer, in conformity to the provisions of this article." Section 3088 (same article) provides that "a negotiable instrument must be made payable in money only, and without any condition not certain of fulfillment." Section 3093 is as follows: "A negotiable instrument must not contain any other contract than such as is specified in this article." There are other sections in the article, not material | here. These Code provisions were evidently intended to remove, and they do remove, all doubt which conflicting judicial decisions had thrown over such questions as the one arising in the case at bar. Under them an instrument is not negotiable if it have "any condition not certain of fulfillment." In the case at bar the instrument, in addition to the main sum, which is to be paid absolutely, provides for another sum, to be paid not only upon the contingency of a suit being brought, but also upon the other condition of the employment of an attorney. It makes no difference that 5 per cent. is adopted as the measure of the attorney's fee, should the contingency of the employment of an attorney happen, even adinitting that a court would be absolutely bound to allow, in the event of a suit, the whole amount of attorney's fee mentioned in the instrument, which is itself a doubtful proposition. Bank v. Treadwell, 55 Cal. 379. An attorney's fee, no matter how estimated, was not to be paid unless "suit be commenced, or an attorney employed," each being a "condition not certain of fulfillment." We think, therefore, that the instrument sued on was Hot, in the sense of current commercial paper, a negotiable promissory note. Judgment affirmed. We concur: THORNTON, J.; SHARPSTEIN, J. Hearing in bank denied. (82 Cal. 588) | must be open for the admission of all children between six and twenty-one years of age, residing in the district," etc., colored children have equal rights with white children to admission to any pub lic school, and cannot be refused admission to the same school with white children, though separate schools have been established for each race. Commissioners' decision. Department 1. Appeal from superior court, Tulare county; WILLIAM W. CROSS, Judge. W. A. Gray and Oregon Sanders, for appellant. N. O. Bradley and W. B. Wallace, for respondent. FOOTE, C. This is an application for a writ of mandate to compel the defendant, Crookshank, a teacher of a public school located in the city of Visalia school-district, of the county of Tulare, to admit the plaintiff as a scholar. The application was denied; and from the judgment rendered therein, and an order refusing a new trial, this appeal is prosecuted. The only ground for the refusal of the teacher to admit the applicant to the public school as a pupil is, as stated by the former, that the father of the petitioner, "on October 1, 1888, came to me, at the public school in Visalia, with a boy about twelve years of age, named Arthur; Wysinger said he had brought his boy to put in school. He said: 'Here is my boy to put in your school.' I told him to take his boy to Mr. McAdams, who taught the colored school. I just assigned him to the colored school. I refused to admit his boy to the public school on Locust street because he was colored, and because this public colored school was established by the board of education, who had instructed me to send the colored children to that colored school. These were my only reasons for refusing to admit him to the public school on Locust street." The boy thus excluded from a public school established for white children is a person of African descent; and both he and his father are colored citizens of the state of California, and of the United States. The sole question to be determined is whether or not, under the laws of this state touching the education of children in the public schools, it is within the power of the board of education of the city of Visalia, in the county of Tulare, to establish a public school exclusively for such children as the applicant, and to exclude them from the schools established for white children. At the date of the decision rendered by the appellate court of this state in Ward v. Flood, 48 Cal. 37, the statute governing the admission of children to public schools ran thus: "Sec. 53. Every school, unless otherwise provided by special law, shall be open for the admission of all white children between five and twenty-one years of age residing in that school-district; and the board of trustees or board of educa WYSINGER . CROOKSHANK. (No. 13,287.) tion shall have power to admit adults, and (Supreme Court of California. Jan. 27, 1890.) PUBLIC SCHOOLS-EXCLUSION OF COLORED CHIL DREN. Under Pol. Code Cal. § 1662, providing that "every school, unless otherwise provided by law, children not residing in the district, whenever good reasons exist for such exceptions. * * * Sec. 56. The education of children of African descent and Indian children shall be provided for in separate schools. Upon trustees or board of education, a separate school must be established for the education of such children. Sec. 1671. The same laws, rules, and regulations which apply to schools for white children apply to schools for colored children." Deer. Pol. Code, note at foot of page 290. Section 1662 of the Political Code was by the same act amended so as to omit the word "white" before the word "children," as it had stood before that time, and as amended it read: "Every school, unless otherwise provided by law, must be open for the admission of all children between six and twenty-one years of age residing in the district; and the board of trustees or city board of education have power to admit adults and children not residing in the district whenever good reasons exist therefor. Trustees shall have the power to exclude children of filthy and vicious habits, or children suffering from contagious or infectious diseases." Following the repeal and amendment of the sections, supra, a Mongolian or Chinese child applied for admission to a public school for white children established in the city and county of San Francisco. Its admission was refused by the teacher of the school, and an application for a writ of mandate was made to compel admission. The appellate court, in Tape v. Hurley, 66 Cal. 473, 6 Pac. Rep. 129, speaking by Mr. Justice SHARPSTEIN, held that such Chinese or Mongolian child could not be excluded from a white school. And it was there said, in reference to section 1662, supra, as amended by striking out the word "white" before the word "children," the written application of the parents or guardians of at least ten such children to any board of trustees or board of education, a separate school shall be established for the education of such children; and the education of a less number may be provided for by the trustees, in separate schools, in any other manner. Sec. 57. The same laws, rules, and regulations which apply to schools for white children shall apply to schools for colored children." Laws 1869-70, p. 838. In pursuance of these statutes, the board of education of the city and county of San Francisco adopted a rule which provided that "children of African or Indian descent shall not be admitted into schools for white children; but separate schools shall be provided for them, in accordance with the California school law." It was held in the case supra that separate schools for colored children of African descent might be established, and that such establishment was not in conflict with the constitution of the state, nor with the thirteenth and fourteenth amendments to the constitution of the United States, but that the legislature could not exclude children from the benefits of a system of education provided for the youth of the state merely because such chil- | dren, so excluded, were of African descent. It was there said, at page 56: "In order to prevent possible misapprehension, however, we think proper to add that in our opinion, and as the result of the views here announced, the exclusion of colored children from schools where white children attend as pupils cannot be supported, except under the conditions appearing in the present case; that is, except where separate schools are actually main-(erroneously printed as section 1667 in the tained for the education of colored children; and that, unless such separate schools be in fact maintained, all children of tho school district, whether white or colored, have an equal right to become pupils at any common school organized under the laws of the state, and have a right to registration and admission as pupils in the order of their registration, pursuant to the provisions of subdivision 14 of section 1617 of the Political Code." If the statutes as they stood when the decision supra was made had remained the law of the state at the time when the petitioner made his application, there can be no question but that it might have been lawfully refused, as a separate school, in all respects like the white school in the same district, had been established for children of African descent. But, following this decision, by an act of the legislature passed April 7, 1880, (Amend. 1880, p. 47,) sections 1669-1671 of the Political Code were repealed. They were as follows: "Sec. 1669. The education of children of African descent, and Indian children, must be provided for in separate schools: provided that, if the directors or trustees fail to provide such separate schools, then such children must be admitted into the schools for white children. Sec. 1670. Upon the written application of the parents or guardian of such children to any board of opinion:) "That is the latest legislative expression on the subject, and was passed as late as 1880. Prior to that time the first clause of the section read: Every school, unless otherwise provided by special statute, must be open for the admission of all white children, between five and twenty-one years of age, residing in the district.' As amended, the clause is broad enough to include all children who are not precluded from entering a public school by some provision of law; and we are not aware of any law which forbids the entrance of children of any race or nationality. The legislature not only declares who shall be admitted, but also who may be excluded; and it does not authorize the exclusion of any one on the ground upon which alone the exclusion of the respondent here is sought to be justified. The vicious, the filthy, and those having contagious or infectious diseases, may be excluded, without regard to their race, color, or nationality. * * * In this case, if effect be given to the intention of the legislature as indicated by the clear and unambiguous language used by them, respondent here has the same right to enter a public school that any other child has. ** * The board of education has power to make, establish, and enforce all necessary and proper rules and regulations not contrary to law,' and none other. St. 1871 72, p. 846. Teachers cannot justify a violation of law on the ground that a resolution of the board of education required them to do so." After the rendition of the judgment in this case, the legislature, in 1885, amended section 1662 of the Political Code so as to add, after the word "diseases," "and also to establish separate schools for children of Mongolian or Chinese descent. When such separate schools are established, Chinese or Mongolian children must not be admitted into any other school." Deer. Pol. Code, § 1662. And so the law existed upon the subject at the date of the institution of this action, and so it stands now. It must appear clear, therefore, that the power to establish separate public schools for children of African descent, and to exclude them from the public schools established for white children, has been taken away from boards of school trustees and boards of education, and that the power claimed by the teacher and the board of education of the city of Visalia does not exist. If it had been intended by the law-making department of the government to invest such boards with the power claimed, it would have given it as expressly as it was taken away by the repeal and amendment of the statutes which once authorized it; and especially is this plainly to be discerned when section 1662, supra, as it now stands, gives the power to establish separate schools for Chinese or Mongolian children, but none other. The whole policy of the legislative department of the goverment upon this matter is easily gathered from the course of legislation shown herein; and there can be no doubt but that it was never intended that, as a matter of classification of pupils, the right to establish separate schools for children of African descent, and thereby to exclude them from white schools of the proper district, should be given to such boards, under section 1617 of the Political Code, which reads: "The powers and duties of trustees of school-districts and of boards of education in cities are as follows: (1) To prescribe and enforce rules not inconsistent with law, or those prescribed by the state board of education, for their own government, and the government of schools." If the people of the state desire separate schools for citizens of African descent and Indians, their wish may be accomplished by laws enacted by the law-making department of the government in accordance with existing constitutional provisions. But this course has not been pursued, as the law now stands; and the powers given to boards of education and school trustees, under section 1617 of the Political Code, do not include the right claimed by the board of education of Visalia. For these reasons we advise that the judgment and order be reversed, and the court below directed to issue a mandate compelling the admission of the appellant as prayed for. We concur: BELCHER, C. C.; HAYNE, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are reversed, and the court below is directed to issue a mandate compelling the admission of the appellant as prayed for. (82 Cal. 631) HANSON v. GRAHAM. (No. 13,130.) (Supreme Court of California. Jan. 27, 1890.) ATTACHMENT-NON-RESIDENT-DOMICILE. and has gone to a foreign country for the purpose. 1. A railroad contractor, who has left the state, of prosecuting his business there, and who, if successful in obtaining contracts, will remain at least as long as will be necessary for their completion, and who has actually been gone four months, though he has repeatedly stated before leaving that he intended to return shortly, is "not resid ing" in the state within the meaning of Code Civil Proc. Cal. § 537, which provides that a writ of attachment may issue where the defendant is "not residing" in the state. 2. Pol. Code Cal. § 52, which provides that "residence" is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose; that there can only be one residence; and that it can be changed only by the union of act and intent, was not intended to apply to the attach ment law, even if it can be considered as establishing the rule that one who has a settled abode for the time being in another state, for the purposes of business or pleasure, shall be treated as a resi dent. Commissioners' decision. Department 2. Appeal from superior court, San Diego county; E. PARKER, Judge. F. W. Burnett, for appellant. Henderson & McDonald, for respondent. In HAYNE, C. This is an appeal from an order refusing to dissolve an attachment. The attachment was issued upon an affidavit that the defendant was a non-resident, and the motion to dissolve was upon the ground that the affidavit was not true, and that the defendant was a resident. The affidavits read upon the hearing consist in great part of mere conclusions and statements on information and belief. The following facts, however, appear to be undisputed: The defendant, Graham, was a contractor for the building of railroads and other similar works. 1884 he left his former residence, and established himself in Victoria, B. C. In 1886 he left that place, and finally settled in San Diego, with the intention of engaging in business there. While in San Diego he lived in hotels and lodging-houses. After about 10 months, business became dull, and he stored his contractor's tools and implements, and in June, 1888, went to Chili for the purpose of engaging in business there. In October, 1888, the attachment was levied, at which time he had not returned from Chili. It further appears that the purpose of going to Chili was to get contracts in his line of business, of which he had heard. So much is undisputed. It does not distinctly appear how long such contracts would take to fill if he succeeded in getting them. In this regard the plaintiff states in his affidavit, upon information and belief, that the defendant had gone to Chili with the inten. tion "of engaging in railway contracting, in volving millions of dollars and years of time for completion, the said work necess.tating ́an extended residence of many years duration," and that, should it be necessary for him to return to the United States, such return would be only for the temporary purpose of arranging his business affairs in said county of San Diego preparatory to the removal of said outfit to the republic of Chili. The defendant produced many atidavits to the effect that Graham had stated before leaving that he intended to return shortly; and the affiants offer their conclusions to the effect that he always intended to return, and that he was still a resident of California. As above stated, the affidavits on each side are vague and unsatisfactory. We think that it sufficiently appears, however, that defendant went to Chili for the purpose of prosecuting his business of contractor there, and that, if successful in obtaining contracts, he would remain at least as long as would be necessary for their completion; and that he had been gone about four months without returning. Upon these facts the question arises whether the judge of the court below was right in holding that the defendant was a non-resident. The statute in relation to attachments provides that the writ may issue when the defendant is "not residing" in this state. Code Civil Proc. § 537. In the next section it is provided that the plaintiff must present an affidavit that the defendant "is a non-resident." These two phrases seem to have been used as equivalent in meaning. Whether they are so in strictness or not need not be considered. But we think that the residence referred to is an actual, as contradistinguished from a constructive or legal, residence; and that there may be such an actual residence, notwithstanding a general intention to return to the place of legal residence or domicile. This was held in a wellconsidered case in Virginia, in which the facts were nearly the same as those involved bere. There a person domiciled in Washington city removed to Virginia with the intention of remaining there for nine months, or for such additional time as might be required to complete certain contracts for building parts of a railroad. He rented his residence in Washington, but without any intention of abandoning his domicile there, and during his stay in Virginia he always claimed Washington as his place of residence, and declared his intention of returning there as soon as his contracts should be completed. Upon these facts it was held that, for the purposes of the attachment law, he was a resident of Virginia; and the court said: "It is apparent that the word ' residence,' like that of⚫ domicile,' is often used to express different meanings, according to the subject-matter. In statutes relating to taxation, settlements, right of suffrage, and qualification for office, it may have a very different construction from that which belongs to it in the * statutes relating to attachments. In the latter actual residence is contemplated, as distinguished from legal residence. * While, on the one hand, the casual or temporary sojourn of a person in this state, whether on business or pleasure, does not make him a resident of this state, within the meaning of the attachment laws, especially if his personal domicile be elsewhere, so, on the other hand, it is not essential he should come into this state with the intention to remain here permanently, to constitute him a resident." Long v. Ryan, 30 Grat. 720. Decisions similar in principle have been made in other states. Frost v. Brisbin, 19 Wend. 11; Krone v. Cooper, 43 Ark. 547; Morgan v. Nunes, 54 Miss. 311; Burrill v. Jewett, 2 Rob. (N. Y.) 701; Haggart v. Morgan, 5 N. Y 423; Nailor v. French, 4 Yeates, 241; Bank v. Merrit, 13 N. J. Law, 134; Stout v. Leonard, 37 N. J. Law, 495; Swaney v. Hutchins, 13 Neb. 266, 13 N. W. Rep. 282. And the rule seems to rest upon sound principle. The reason of allowing an attachment against a non-resident was that it was one mode of acquiring jurisdiction in a suit against him. And this purpose would not be satisfied if the debtor could preserve a constructive residence in the state by virtue of a general intention to return, when he was in fact residing in another state. The rule, indeed, has not gone so far as to cover the case of a mere transient journey. But where a man has a settled abode for the time being in another state for purposes of business or pleasure, we think that both reason and authority require him to be treated as a non-resident of this state, within the meaning of the attachment law. We have not overlooked section 52 of the Political Code.1 But, if a different rule is there provided, we think that the provision was not intended to apply to the attachment law. In the light of these principles, we think that it does not appear that Graham was a resident of California after his departure for Chili. It having been shown that he left the state for the purpose of engaging in business in a foreign country, a prima facie case of non-residence was made out, and we do not feel that we can say that the contrary was shown. We therefore advise that the order appealed from be affirmed. We concur: BELCHER, C. C.; FOOTE, C. PER CURIAM. For the reasons given in foregoing opinion the order appealed from is affirmed. 1 Pol. Code Cal. § 52, provides: "In determining the place of residence, the following rules are to be observed: (1) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose. (2) There can only be one residence. (3) A residence cannot be lost until another is gained. (7) The residence can be changed only by the union of act and intent. " * * * |