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TRIAL (Continued). 6. MINUTE ORDER DIRECTING JUDGMENT REOPENING OF CASE. —

A court has jurisdiction to reopen a 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, l.

UNDUE INFLUENCE. See Deeds, 1.

UNINCORPORATED ASSOCIATION. See Deeds, 6.

UNSOUND MIND. See Deeds, 3-5

VALUATION. See Fraud, 5.

VARIANCE. See Negligence, 28.

ING

VENDOR AND VENDEE. 1. INABILITY TO CONVEY PERFECT TITLE-ACTION BY VENDOR-PLEAD

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

FECT TITLE --- DUTY OF VENDEE. A vendee in possession under a contract of sale cannot, upon the vendor's inability to convey a title free and clear of encumbrances as required by the contract, retain both the land and the money until a perfect title shall be offered him, but he must pay the purchase price according to the contract and receive such title as the vendor is able to give him

if he chooses to retain possession of the property. (Id.) 3. DELIVERY OF DEED

PAYMENT OF MONEY AS CONDITION PREWhere 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

CEDENT.

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 con

veyance. (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. (10.) 7, FORFEITURES-CONSTRUCTION-POWER OF COURT TO CHANGE CON

TRACT.—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 ex

pressed 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 ad

ince 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 VENDEES

ESTOPPEL.-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 ENCUMBRANCES INTENT OF VENDOR AGREE

OF

MENT 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 in

formality 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.

owner

WAREHOUSEMEN. 1. DESTRUCTION OF WHEAT - ACTION FOR DAMAGES — ABSENCE OF

NEGLIGENCE — BURDEN OF PROOF. — In 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

of similar goods would exercise, (Garrutte v. Grangers Business Assn., 396.) 2. ORDINARY DILIGENCE EVIDENCE – FINDING. - In actions involv

ing 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 plaintiff's; 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.)

WORK MEN'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. 92C), re-
lating 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. (Baker
v. Superior Court, 288.)

WRIT OF REVIEW. See Certiorari.

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