TRIAL (Continued). 6. MINUTE ORDER DIRECTING JUDGMENT A court has jurisdiction to reopen a - REOPENING OF CASE. case for further evidence after the making of a minute order directing judgment. (Carr v. International Indemnity Co., 614.) See Pleading. TRUSTS. See Deeds, 6; Guardian and Ward, 9, 11. UNDERTAKING. See Attachment, 1. UNDUE INFLUENCE. See Deeds, 1. UNINCORPORATED ASSOCIATION. See Deeds, 6. UNSOUND MIND. See Deeds, 3-5 VALUATION. See Fraud, 5. VARIANCE. See Negligence, 28. VENDOR AND VENDEE. 1. INABILITY TO CONVEY PERFECT TITLE-ACTION BY VENDOR-PLEADING SUFFICIENCY OF COMPLAINT. - In an action by a vendor under a contract of sale to compel the vendee to either accept such title as the plaintiff can convey or accept a return of the deposit and restore possession, the complaint is not subject to general demurrer on the ground of failure to allege a valid reason excusing plaintiff from conveying a perfect title, where it appears therefrom that a third party has a right of way across the property for a pipe-line through which it conducts water for a public use and that it refuses to relinquish such line. (Luther v. Clark, 59.) 2. VENDEE IN POSSESSION - INABILITY OF VENDOR TO CONVEY PER A vendee in possession under FECT TITLE-DUTY OF VENDEE. 3. DELIVERY OF DEED PAYMENT OF MONEY AS CONDITION PRECEDENT. Where a contract for the sale of real property provides that the performance by the vendees of their covenants relating to the payment is to be a condition precedent to the obligation of the vendor to convey title to the property, the VENDOR AND VENDEE (Continued). vendees' payment of the money or offer to pay cannot be coupled with the condition that the conveyance be made before the money is transferred. (Troughton v. Eakle, 161.) 4. REFUSAL OF OFFER - TENDER REMEDIES OF VENDEES. -If the vendees under such contract pay according to their agreement, or offer to pay, and the vendor refuses to accept the money, or if by the conduct of the vendor the vendees are prevented from making such payment or offer, by depositing the money as provided by section 1500 of the Civil Code, they are in a position to compel conveyance or to recover the money already paid. (Id.) 5. CONDITIONAL ABILITY TO PAY-NONCOMPLIANCE WITH CONTRACT.A person who, because of the instructions from his principal, cannot and will not pay certain money until he gets a certain conveyance has neither the ability nor willingness to satisfy the requirements of a contract which provides that such payment is to be a condition precedent to the obligation to make such conveyance. (Id.) 6. WHEN FORFEITURE COMPLETE SUBSEQUENT ACTS BY VENDEES.— Where, under a contract for the sale of real property, time is made of the essence, and a given payment by the vendees is to be made not later than a specified date, the forfeiture of the vendees resulting from not making such payment is complete on that date and such forfeiture cannot be undone by any act of the vendees on a later date. (Id.) 7. FORFEITURES-CONSTRUCTION-POWER OF COURT TO CHANGE CONTRACT. The rule that the law looks with disfavor upon forfeitures and that "a condition involving a forfeiture must be strictly interpreted against a party for whose benefit it is created" does not permit the courts to make for the parties a different contract from what they have agreed upon or resort to a strained and unnatural construction to defeat or nullify their clearly expressed purpose or intention. (Id.) 8. INEFFECTIVE ATTEMPT TO MAKE PAYMENT EQUITY.-Where the vendees under a contract of purchase make an effort to comply with their obligation as to payment, but, acting probably without legal advice, their effort is ineffective, the court, upon proper application therefor, can allow them such relief as is just and equitable in view of all the circumstances. (Id.) 9. POSSESSION BY VENDEE.-A vendee under a contract of sale is not entitled to immediate possession of the property unless there is a valid contract and it is expressed therein or plainly inferable from some term thereof, or it appears from surrounding circumstances that the vendee is to have such right. (Gold v. Phelan, 471.) VENDOR AND VENDEE (Continued). 10. WRITTEN CONTRACT OF SALE - MISTAKE ORAL EVIDENCE. — In an action to compel the repayment to the plaintiffs of a sum of money deposited as an advance payment on a purchase of real estate, and in which the defendants file an answer and cross-complaint in which they plead that through mistake the instrument as executed by the parties did not truly express their agreement, oral evidence is admissible to show whether or not a mistake had been made, notwithstanding such contract falls within the statute of frauds. (Key v. Vidovich, 710.) 11. COVENANT AGAINST ENCUMBRANCES-KNOWLEDGE OF VENDEESESTOPPEL. Notwithstanding the vendees have knowledge of the existence of a contract executed by the vendor whereby the latter has agreed to sell and deliver all raisins produced on the premises to a certain association, which contract constitutes an encumbrance upon the property, that knowledge will not destroy the effect of the covenant contained in their contract of purchase whereby the vendor contracts to furnish a certificate of title showing the property to be free from encumbrances. (Id.) 12. ASSUMPTION OF ENCUMBRANCES INTENT OF VENDOR-AGREEMENT OF VENDEES-MISTAKE.-The fact that the vendor had intended that the vendees should take the property subject to the encumbrance requiring the sale and delivery of all raisins produced thereon to a certain association and the vendees had knowledge of the existence of such encumbrance prior to their execution of the contract of purchase would not justify the reformation of the contract of purchase, on the ground of mistake, so as to express the intent of the vendor, where the vendees had not expressly agreed to take the property subject to such encumbrance. (Id.) 13. SUFFICIENCY OF TENDER.-The question of the formality or informality of the tender and demand of the vendees not having been raised at the time such tender was made, and thereafter the vendor having sold the property in question to a third party, it was no longer necessary that the vendees should again tender, or offer to tender, the remaining purchase payments before commencing an action to recover the money deposited as an advance payment on the purchase price. (Id.) VENUE. See Place of Trial. VERDICT. INDICTMENT CHARGING DIFFERENT OFFENSES. A verdict finding a defendant guilty as charged in the indictment is not void for uncertainty, notwithstanding the indictment contains more than one count, where the jury is given several forms of verdict and VERDICT (Continued). specifically instructed as to the use of each form. (People v. Cassella, 547.) See Intoxicating Liquors, 11, 12; Negligence, 2. WAIVER. See Criminal Law, 67; Deeds of Trust, 6; Intoxicating Liquors, 12; Judgments, 6; Justice's Court, 2; Option, 3; Pleading, 3. WAREHOUSEMEN. 1. DESTRUCTION OF WHEAT NEGLIGENCE - BURDEN OF PROOF. - In ACTION FOR DAMAGES - - ABSENCE OF an action for damages for the destruction of the plaintiff's wheat while it was admittedly in the defendant's possession as a warehouseman, the burden is on the defendant to prove that, as a warehouseman, it exercised such care in safeguarding plaintiffs' property as a reasonable and careful owner of similar goods would exercise. (Garrutte v. Grangers Business Assn., 396.) 2. ORDINARY DILIGENCE EVIDENCE FINDING. In actions involving the negligence of a warehouseman the usual rule that what constitutes ordinary diligence or care in a given case is always a fact to be determined by the jury, in view of surrounding circumstances, where there is substantial evidence upon which to submit such an issue; and it is only in the absence of such evidence that it becomes a question of law to be determined by the court. (Id.) 3. ISSUES BURDEN OF PROOF-PRIMA FACIE CASE-INSTRUCTIONS.In this action for damages for the destruction of plaintiffs' wheat while in defendant's warehouse, it having been necessary for plaintiffs to offer proof as to two disputed issues before a prima facie case was established, the court did not commit error in giving a general instruction to the effect that the burden of proof was on the plaintiffs; but conceding that all essential elements of plaintiffs' case were covered by stipulation and that said instruction, therefore, was not applicable, the error could not have misled the jury, the court immediately following that instruction having advised the jury that the plaintiffs had established a prima facie case if they had established that they delivered the wheat to the defendant and the defendant had failed to return it, and that the burden was then upon the defendant to establish by a preponderance of the evidence that the loss of the wheat occurred without any negligence on its part. (Id.) WATERS AND WATER RIGHTS. See Contracts, 20. WILLS. See Specific Performance, 1. WORDS AND PHRASES. 1. "COURT" AND "JUDGE" CONSTRUCTION - INTENT. The words "court" and "judge" will be construed as synonymous whenever it is necessary to carry into effect the obvious intent of the legislature. (Newby v. Bacon, 337.) 2. PERFORMANCE OF ACT BY "COURT" OR "JUDGE" - DETERMINATION OF QUESTION-CONSTRUCTION.-Whether the term "court" is used as synonymously or interchangeably with "judge," and whether the act is to be performed by one or the other, is generally to be determined by the character of the act rather than by such designation. (Id.) WORKMEN'S COMPENSATION ACT. CONSOLIDATION OF ACTIONS AGAINST THIRD PERSONS - TITLE OF ACT-CONSTITUTIONALITY.—Although the provisions of section 26 of the Workmen's Compensation Act (Stats. 1919, p. 920), relating to the claim of an "employee" and his right to bring suit against a third person, and providing for the consolidation of such an action with an action brought by the employer against such third person, are not specifically indicated in the title of said act, those provisions are fairly connected with and calculated to carry into effect the declared object of the act, and, therefore, that section is not unconstitutional as violative of section 24 of article IV of the state constitution, which requires the subject of any act of the legislature to be expressed in its title. v. Superior Court, 288.) WRIT OF REVIEW. See Certiorari. (Baker L20827 |