that time were in the Spanish language and some were in English. Appellant claims that the court erred in receiving the testimony of the reporter concerning the statements made by the defendant in his presence, since it appeared that the statements made in Spanish were translated into English by an interpreter and were taken down by the reporter as given to him through the interpreter. But the record shows that, on objection made by the defendant, the court excluded from the testimony of the reporter those portions of defendant's statements which were made in the Spanish language and refused to receive the same in evidence. Those rulings having been made in favor of the defendant, he is left without foundation for his complaint respecting that testimony.

The next point relied upon is that preliminary to the reception in evidence of testimony concerning the statements or confessions made by the defendant, it was not shown that no inducements were offered or threats made to the defendant before those statements were made by him. Referring to the transcript pages referred to by appellant's counsel in their argument, we find that the record does not in fact support the claim made concerning it. The conversations in which those statements were made by the defendant all occurred on the thirtieth day of June, 1916; two of them before noon and two in the afternoon. As to each of those conversations testimony was given to the effect that no threats or promises were made to the defendant and that his statements were made voluntarily. The district attorney asked such questions as the following: "Did you make any promises or hold out any inducements to the defendant to get him to talk on that occasion?" "Did he talk to you freely and voluntarily at that time?" Objections were made to those questions as calling for the conclusions of the witness, and the objections were overruled. Assuming that these rulings were erroneous, yet on the complete record it does not appear that they were prejudicial. Opportunity was given for cross-examination, and questions were asked by defendant's counsel with respect to the circumstances under which the statements were made, but it was not made to appear that any improper influences were used to open the lips of the defendant. His several statements were made at different times and places; on a public street, and at the scene of the crime, as well as at the jail. It is true that the court reporter in giving his testimony as

above mentioned did not say anything with respect to the circumstances leading up to the statement of the defendant as reported by him. But that ground had been covered by another witness referring to the same conversation, and the reporter stated that he did not come into the room until the other persons present had assembled there and that he only took down the formal questions and answers. Assuming that the extrajudicial statements, or some of them, made by the defendant, should be treated as confessions and subject to the rule here invoked by the defendant, we nevertheless hold that the record does not establish the claim that there was no foundation for the reception in evidence of the testimony covering those statements. "The mere fact that the defendant is under arrest and in the custody of officers, and that the alleged confession is made in answer to questions, will not authorize the rejection of such confession, if it fairly and clearly appears that the statements of the defendant were of a voluntary nature.' (People v. Hoge, 25 Cal. App. 456, 458, [143 Pac. 1072].)

The court gave to the jury the following instruction: "From the evidence in this case and the appearance of the defendant before you since the beginning of this trial you are to determine the matter of his insanity or idiocy or lunacy at the time it is alleged that he committed the crime charged in the indictment, these questions being questions of fact of which you are the sole judges." Appellant claims error in this instruction in that defendant was not a witness at the trial and that the "appearance of the defendant" before the jury was not a fact in evidence. The record shows, however, that the personal appearance of the defendant was brought to the attention of the jury by defendant's counsel in at least one instance. While they were examining the father of the defendant as a witness in his behalf, the witness testified that when five years old the defendant was kicked by a horse, and marks on defendant's face caused by the accident were pointed out and identified by the witness. This evidence was introduced as a part of the effort made to show that the mental condition of the defendant had been affected by the injury so received.

The other objections presented by counsel for defendant with respect to instructions given and with respect to instructions refused, in so far as they are not covered by the proposi

tions heretofore considered in this opinion, are of such slight importance that they do not require discussion. The law of the case was fairly and fully stated to the jury.

The judgment and order are affirmed.

James, J., and Shaw, 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 September 27, 1917.

[Civ. No. 1905. Second Appellate District.-July 31, 1917.] IRVIN H. BETTS, Respondent, v. C. N. ORTON, Appellant. CONTRACT-PAYMENT OF PROMISSORY NOTE-PROCEEDS FROM SALE OF GROWING CROP LESS HARVESTING EXPENSES-INTERPRETATION OF TERM.-An agreement indorsed on the back of a promissory note given in payment for the purchase price of the payee's interest in a growing crop of grain, which was owned jointly by the payee and maker of the note, that the payee should look for payment solely to the proceeds of the sale of the crop "after any and all harvesting expenses" had been paid out of the proceeds realized from the sale of the crop, is not to be interpreted as limiting the harvesting expenses to only such expenses as the maker of the note might incur in the cutting and threshing of the crop, but includes the cost of making repairs to the machinery used in harvesting, rent of livestock, and implements required, cost of labor, and board of men.

ID.-INTERPRETATION OF CONTRACTS.-Contracts are to be interpreted so

as to give effect to the mutual intention of the parties, which intent, where the language is clear and explicit and does not involve an absurdity, is to be ascertained from the language thereof; it is only where it is doubtful, uncertain, or ambiguous that the circumstances surrounding the making of the contract become important in ascertaining the intent of the parties.

APPEAL from a judgment of the Superior Court of Kings County, and from an order denying a new trial. M. L. Short, Judge.

The facts are stated in the opinion of the court.

Frank B. Graves, for Appellant.

Robert W. Green, and J. L. C. Irwin, for Respondent.

SHAW, J.-This is an action which partakes of the nature of a demand for an accounting, wherein plaintiff asks to have a certain note given by him to defendant canceled, and also seeks to recover a balance alleged to be due him from defendant. Judgment went for plaintiff from which, and an order denying his motion for a new trial, defendant appeals.

The material facts, as appear from findings made by the court, are as follows: Plaintiff and defendant were joint owners of a four-fifths interest in a growing crop of grain. On May 27, 1914, plaintiff bought defendant's interest therein, giving in payment for the purchase price of two thousand five hundred dollars his promissory note secured by a mortgage on the growing crop. On the back of the note was indorsed an agreement executed at the time by defendant to the effect that the payee thereof should look for payment solely and alone to the proceeds of the sale of the crop "after any and all harvesting expenses in the harvesting of said crop have been fully paid out of the proceeds realized from the sale of said crops.' The crops were harvested and sold for the sum of $5,770.90, of which sum defendant received $3,772.95, out of which he paid on account of harvesting $1,376.28, leaving a balance of $2,396.67, which he applied in payment of the note. In addition to the amount so paid by defendant toward the expenses of harvesting, plaintiff received direct from the purchaser of the grain certain moneys which, when added to the sum so paid by defendant, left a balance, as found by the court, of $835 still due plaintiff out of the proceeds of the sale for the expense of harvesting. Upon this last sum the court found he had received from defendant $249.45, leaving a balance of $585.59 due him from the amount so received by defendant, for which judgment was rendered. These findings, which are material to the issues joined, find ample support in the evidence. Other findings attacked by appellant, even conceding insufficiency of evidence, as claimed, to support them, are, from our point of view, deemed immaterial. Among such facts the court found that plaintiff tended, took care of, harvested, and threshed the said crops and delivered the same to defendant

prior to October 31, 1914, in accordance with the terms of the mortgage, and that defendant sold the same to the Chinn Warehouse Company, receiving therefor the sum of $5,770.90. There was testimony on the part of defendant that some ninety acres of the crop was overripe or burned, as a result of which it was damaged some thirty per cent. But there is no evidence tending to show that such fact was due to any negligence on the part of plaintiff; nor can it be ascertained from such testimony what the amount of such alleged loss or damage was, since it is not made to appear what the production would have been had it been harvested as defendant claims it should have been. It also appears that physical delivery of the grain was not made direct to defendant, but to the Chinn Warehouse Company, purchaser thereof, and that plaintiff received directly from the purchaser a certain sum of money, which, however, was insufficient to pay the harvesting expenses; the balance being paid by the purchaser to defendant. Hence, conceding that the grain was not delivered directly to defendant, as found by the court, and that defendant did not receive all of the proceeds of the sale thereof, such facts, under the circumstances, are immaterial.

The chief ground for the controversy appears to have been a dispute between the parties as to the meaning of the agreement indorsed upon the back of the note and as to what constituted "harvesting expenses, defendant insisting that the agreement should be read, not in accordance with the plain import of the language used therein, but that the term "harvesting expenses" referred only to such expenses as plaintiff might have incurred in the cutting and threshing of the crop. We find no error in the ruling of the court in this regard. The meaning of the agreement appears to be clear and unambiguous, namely, that out of the proceeds of the sale of the grain plaintiff should be entitled to a sufficient sum to meet the expenses of harvesting the same. The disputed claim of several hundred dollars was made up of many items, such as the cost of making repairs to machinery used in harvesting the crop, rent of livestock and implements likewise required for such purpose, cost of labor, board of men, all of which the court upon sufficient evidence found were proper charges under the terms of the agreement. Upon the record we are unable to perceive any reason why plaintiff was not entitled to reasonable compensation in the way of hire