sonable time can be ascertained, the agency is not within Civil Code Cal. § 2356, providing that, unless the power of an agent is coupled with an interest in the subject of the agency, it is terminated by revocation.

2. SAME-REVOCATION-INSTRUCTIONS.

In an action for damages arising from the revocation of a contract of agency, where the evidence shows no definite term of agency, but does show an agreement by the principal not to revoke, the refusal of the court to charge that if the jury believe, from the evidence, that no definite time was agreed upon between plaintiffs and defendant for the contract to endure, then said contract could be terminated by either party at any time, is not error.

3. SAME-BREACH OF AGREEMENT NOT TO REVOKE--DAMAGES.

In an action for damages caused by an alleged breach of a contract of agency, the plaintiff failed to prove with reasonable certainty the amount of damage sustained, but left such damages to be fixed entirely by the jury. Held sufficient ground for a new trial.

Department 1. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge.

Action by Lyman C. Parke and Benjamin T. Lacy, against A. H. Frank, doing business as A. H. Frank & Co., to recover for damages arising out of a breach of a contract of agency. Judgment for plaintiffs, and defendant appeals.

Charles P. Eells, for appellant. H. C. Newhall and E. N. Deuprey, for respondents.

MCKINSTRY, J. The main contention of the appellant in the court below was that the contract of agency, not being for any definite term, was revocable at the will of the principal. Appellant claims that the rulings of the superior court alleged to be erroneous are exemplified by the portion of its charge to the jury which reads: "No period of time was mentioned. * * * Where employment is proved, and no time is specified, the law presumes it shall last and endure for a reasonable time. What would be a reasonable time is a question for you to determine;" and by the refusal of the court, on request of defendant, to charge: "If the jury believe, from the evidence, that no definite time was agreed upon between plaintiffs and defendant for the contract of agency to endure, then said contract could be terminated by either party thereto, at his option, at any time." The Civil Code provides: "Unless the power of an agent is coupled with an interest in the subject of the agency, it is terminated, as to every person having notice thereof, by its revocation by the principal." Section 2356. The interest which can protect a power after the death of the person who creates it must be an interest in the thing itself, and not an interest in that which is produced by the exercise of the power. Hunt v. Rousmanier, 8 Wheat. 174. It may be conceded that, by the section of the Civil Code, a revocation by the principal terminates the agency in every case where his death terminates it, and that the plaintiffs herein had no such interest in the subject of the agency as rendered the agency irrevocable. Nevertheless, if, for a valuable consideration, the defendant agreed not to revoke the agency for a reasonable time, and in view of the circumstances and nature of the contract a reasonable time could be ascertained, he had no legal right to revoke it during such time. Although a letter of attorney depends, from its nature, on the will of the person making it, and may, in general, be recalled at his will, yet if he binds himself for a consideration, in terms, or by the nature of his contract, not to change his will, the law will not permit him to change it." Hunt v. Rousmanier, 8 Wheat. 203. In such case, if he fails to comply with his contract, he becomes liable to the agent as such. Even if, however, it should be conceded that, under the Code, the principal retains the right to revoke a power, at his option, in every case where the agent is not vested with an interest in the subject of the agency, this would not render illegal a collateral agreement whereby the principal should agree, for a con

66

sideration, not to exercise the power for a definite period, or for a reasonable time ascertainable. In case of such an agreement, if the agency is revoked by the principal, and the agent is thereby deprived of authority further to act as such, the principal is liable in damages by reason of the breach of his promise not to recall the agency. Whether, therefore, it be considered that the defendant violated his contract by refusing to make consignments to the plaintiffs, or violated it by revoking the agency, he would be liable upon proper pleading. And in each case the rule of damages would be the same, that is, the plaintiffs would be entitled to recover the direct or approximate damages sustained by reason of defendant's depriving them of the benefits of the agency. The court below did not err in refusing to give the instruction asked by defendant, because that instruction ignores all evidence tending to show that the defendant agreed not to revoke the agency. But the instruction given, while abstractly correct, suggests that, independent of any express promise or implied promise arising out of the nature of the contract, the defendant had no legal right to put an end to the agency until the expiration of a "reasonable time."

There should be a new trial of the issue as to damages. It seems not infrequently to be lost sight of in the trial courts that, in actions upon contracts, the amount of damages caused by an alleged breach is to be proved as a fact. It is impossible to ascertain from the statement for new trial upon what facts, taken as proved, the jury based their verdict for $4,843.90, or why the verdict was reduced by the court to $3,100 rather than to any other sum. We find no evidence which will sustain a judgment for either amount. This is not an action for a tort; the amount of the recovery was not to be left, upon general principles, to the "sound discretion" or "dispassionate judgment" of the jury. It is an action to recover the actual and proximate damages caused to plaintiff by a failure of defendant to perform his contract. Where there is a legal measure of damages the jury must determine the amount as a fact; otherwise the law which so measures the damages would be of no avail. 1 Suth. Dam. 2. It is often said to be a paramount principle that the person injured shall receive compensation commensurate with his injury, and no more. By reason of the breach of his contract, if he did break it, the defendant here became liable for the full amount of damages which resulted "naturally" (that is, in usual course of things) and proximately from the breach. These were to be proved with reasonable certainty. The particulars of damages were so far capable of ascertainment, and upon the plaintiffs was imposed the obligation of proving them. The matter should not have been left to the conjectures of jurymen. The number of shipments, or quantity of machinery to be sent, was not fixed by the parties, and the plaintiffs very properly made no effort to establish the profits they might have made, during any definite period, had defendant complied with his contract. From the nature of the case, such damages must have been purely speculative. But there is nothing in the record to indicate but that they could have proved, with reasonable certainty, what necessary expenses they were induced to incur, by reason of defendant's promise, for the purpose of carrying out their contract with him, as distinct from their contracts, if any, with the R. W. Gardner & Lehigh Valley E. W. Company; or what special damages pleaded, if any, they sustained by reason of loss of profits upon orders of defendant for machinery which the latter refused to fill, in case the evidence showed such machinery had been ordered from them by responsible third parties, or would have been sold had it been received in due course. The plaintiffs were not entitled to recover the difference between the manufacturer's prices for machines and the enhanced prices paid by them for the purchase of machines from other persons in the east. These were independent transactions, which were not the direct consequence of the breach of the defendant's agreement, and cannot, as matter of law, be said to have been contemplated by him.

On the whole case, we think the interests of justice demand a new trial. Judgment and order reversed, and cause remanded for new trial.

We concur: SEARLES, C. J.; PATERSON, J.

(75 Cal. 411)

PEOPLE v. COLLINS. (No. 20,378.)

(Supreme Court of California. March 28, 1888.)

1. CRIMINAL LAW-CONTINUANCE-ENGAGEMENTS OF COUNSEL.

A motion for continuance on the ground that counsel had been prevented from making due preparation for trial by a prior engagement is addressed to the discretion of the court, and will not be reviewed except for abuse.

2. SAME-WITNESS-IMPEACHMENT-HARMLESS ERROR.

Defendant having been called as witness, error in admitting testimony impeaching him will be disregarded where it does not prejudice his case.

In bank. Appeal from superior court, city and county of San Francisco; W. C. VAN FLEET, Judge.

Appeal by defendant from a judgment and order refusing a new trial. John D. Whaley, for appellant. Atty. Gen. Geo. A. Johnson, for the People.

SHARPSTEIN, J. We are urged by appellant's counsel to reverse the judgment and order denying defendant's motion for a new trial, on two grounds, neither of which, in our opinion, is tenable.

1. The defendant's motion for a continuance on the ground that his counsel had been unable, in consequence of another and prior engagement, to make due preparation for the trial of defendant's case, was one which addressed itself to the sound discretion of the court below, and ought not to be interfered with unless we could see clearly that there had been an abuse of discretion, which is not in this case apparent to us.

2. Defendant was examined as a witness in his own behalf; and for the purpose of impeaching him the prosecution called one Adams as a witness, and, after he had testified to having known the defendant about four years, the prosecuting attorney asked him if he knew the defendant's general reputation for truth, honesty, and integrity in the community in which he lives. The witness answered: "I don't know, as I never heard." The witness was then asked by said counsel to say whether he knew it or not. He answered: "I do not." Some other questions elicited from him the statement that he did not know where the defendant lived, and therefore could not state what his reputation was where he lived. The district attorney then asked the witness this question: “Do you know his reputation for honesty and integrity in this community of San Francisco?" The question was objected to, and the court overruled the objection. The witness answered in the affirmative; and to the question, "What is it?" answered, "Bad." This question is not in the approved form, and the court should have sustained the objection to it. But the error, in our opinion, did not prejudice the defendant's case, and therefore must be disregarded. The other witnesses to whom the questions were put in proper form testified that defendant's reputation was bad in the community where he lived. In view of the character of the other evidence in the case, we think the evidence as to the defendant's reputation superfluous.

Judgment and order are affirmed.

We concur: SEARLS, C. J.; MCFARLAND, J.; PATERSON, J.

(75 Cal. 383)

PEOPLE. MYER. (No. 20,383.)

(Supreme Court of California. March 28, 1888.)

1. LARCENY-WHAT CONSTITUTES-ASPORTATION.

Evidence that defendant was found in possession of an overcoat taken from a dummy, but still fastened to it by a chain through the sleeves, the dummy being on the sidewalk, and tied to the building by a string, as there was no asportation, does not show larceny under Pen. Code Cal. § 484, defining larceny to be the felonious stealing, taking, or carrying away the personal property of another.

2. CRIMINAL LAW-DEFENDANT AS WITNESS-CROSS-EXAMINATION.

Pen. Code Cal. § 1323, provides that defendant in a criminal action cannot be compelled to be a witness against himself; but, if he offer himself as witness, may be cross-examined as to all matters about which he was examined in chief. Defendant testified in chief merely that he had been drinking, and, as he was walking along, fell over something, and the first thing he knew somebody grabbed him. Questions, on cross-examination, if he had ever gone under an alias, or had ever been convicted of felony, held permissible. MCFARLAND and PATERSON, JJ., dissenting. In bank. Appeal from superior court, city and county of San Francisco; D. J. MURPHY, Judge.

On information against defendant, Frank Myer, for stealing an overcoat, defendant was convicted, and appeals.

John D'Arcy, for appellant. Atty. Gen. Geo. A. Johnson, for the People.

SHARPSTEIN, J. The defendant was tried on an information in which it was charged that he willfully, unlawfully, and feloniously stole, took, and carried away one overcoat of the value of $20, the personal property of Harris Joseph and Lewis Joseph. On the trial Lewis Joseph testified as follows: "I had, as usual, placed and buttoned an overcoat upon a dummy which stood on the sidewalk outside of my store. I was inside the store, and heard the chain of the dummy rattle, and on coming outside found defendant with said coat unbuttoned from the dummy, and under his arm, the same being entirely removed from the dummy, and about two feet therefrom and from the place where it had been originally placed on the dummy by me; and the accused was in the act of walking off with said coat when grabbed by me, he being prevented from taking it away because said coat was chained to the dummy by a chain which ran through the coat-sleeve, and the dummy was tied to the building by a string." This was the only evidence introduced to prove the charge of larceny. The jury, on this evidence, returned a verdict of guilty of petit larceny as charged; and the defendant, having pleaded guilty of prior convictions of other petit larcenies, was sentenced to imprisonment in the state prison for the term of two years. He moved for a new trial, which was denied, and from that order and the judgment this appeal is taken.

Appellant insists that the verdict is contrary to the evidence, which, it is claimed, does not prove that the defendant carried away the coat which he is charged with having stolen, but proves that he did not. "Larceny," as defined in the Penal Code of this state, "is the felonious stealing, taking, carrying, leading, or driving away the personal property of another." This is substantially the common law definition, under which it was held that it must be shown that the goods were severed from the possession or custody of the owner, and in the possession of the thief, though it be but for a moment. Thus where goods were tied by a string, the other end of which was fastened to the counter, and the thief took the goods and carried them towards the door as far as the string would permit, and was then stopped, this was held not to be a severance from the owner's possession, and consequently no felony. 3 Greenl. Ev. § 155. "In the language of the old definition of larceny," says Bishop, "the goods taken must be carried away. But they need not be retained in the possession of the thief, neither need they be removed from the owner's premises. The doctrine is that any removal, however slight, of the entire article, which is not attached either to the soil or to anything not re

cases.

moved, is sufficient; while nothing short of this will do." 2 Bish. Crim. Law, 794. The attorney general admits that this is the doctrine of the English In State v. Jones, 65 N. C. 395, the court says: "There must be an asportation of the article alleged to be stolen, to complete the crime of larceny. The question as to what constitutes a sufficient asportation has given rise to many nice distinctions in the courts of England, and the rules there established have been generally observed by the courts of this country." People v. Williams, 35 Cal. 671, was not so clearly within the rule as this case is; but the court said that it did not feel at liberty to depart from a rule so long and so firmly established by numerous decisions. Tested by that rule, the evidence in this case was clearly insufficient to justify the verdict, and the defendant is entitled to a new trial on that ground.

There is another alleged error which we deem it our duty to pass on, particularly as the case must be remanded for a new trial. The defendant testified, in his own behalf, that he had been drinking, aud as he was walking along fell over something, and the first thing he knew somebody grabbed him. This was all he testified to on his examination in chief. On cross-examination he was asked what was his true name. He replied, "Frank Myer." He was then asked, against his counsel's objections, the following questions: "Did you ever go by the name of Frank Miller? Did you ever go by the name of Frank Smith? Did you ever go by the name of Otto Meyer? Have you ever been convicted of a felony in this city and county?" These questions were all answered in the affirmative, and had a tendency to throw discredit on defendant's testimony. "A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but, if he offer himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief." Pen. Code, § 1323. In People v. Chin Mook Sow, 51 Cal. 597, the defendant, on cross-examination, was asked if he had not previously been convicted of a certain felony. He answered that he had not, and the district attorney was permitted, against the objection of defendant's counsel, to introduce in evidence a record of such prior conviction. The ruling of the lower court was sustained by this court, and we think the case directly in point here. There are expressions to be found in the opinions of courts for which we entertain the highest respect which seem to militate against this view of the matter, but none in which the precise question here presented was involved. Judgment and order reversed.

We concur: SEARLS, C. J.; MCKINSTRY, J.; THORNTON, J.

MCFARLAND, J. I concur in the judgment; but I dissent from the latter part of the opinion of the court, which holds that certain questions were properly allowed to be asked defendant on his cross-examination. The limit of cross-examination of ordinary witnesses is not marked with any great accuracy or distinctness. Questions are frequently allowed which strictly do not refer to the matters about which the witnesses testified in chief. Great latitude is given trial courts in passing upon the admissibility of such questions; and their discretion is rarely interfered with by appellate courts. Now, if the legislature had intended to put a defendant in a criminal case, testifying for himself, upon the same footing as other witnesses, it could easily have signified that intention in one of two ways: First, by saying nothing about it; or, second, by saying, affirmatively, that he should be subject to cross-examination as other witnesses. But the language of section 1323, Pen. Code, is that he may be cross-examined "as to all matters about which he was examined in chief." Therefore either no signification at all must be given to this language,--which would be to violate a cardinal rule of construction,— or else it must be held to be a limitation of the general practice on cross-exam