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In the amended location certificate, dated August 26, 1911, the boundaries of the Samson claim are described as follows:

"Beginning at a monument of stones placed on center of said ledge or lode, thence 300 feet southerly to monument of stones placed on sorth boundary line, thence westerly 750 feet to a monument of stones placed on southwest corner, thence northerly 600 feet to a monument of stones placed on the northwest corner, thence easterly 1,500 feet and parallel with said vein to a monument of stones placed on the northeast corner, thence southerly 600 feet to a monument of stones placed on the southeasterly corner, thence westerly 750 feet to monument of stones and place of beginning."

J. C. Reaves, a deputy United States mineral surveyor, testified that he surveyed the Samson and Annex claims in November, 1914; that he had with him a copy of the amended location certificate of the Samson lode; and that Mr. Batt pointed out to him location stakes and monuments. At the northwest corner he found a 4x4 pine post in a mound of stone; the post was marked "Samson NWcor." At the southwest corner he found a 4x4 post in a mound of stones. At a point on the south side line he found a mound of stone, but no stake, and he also found a stake in a mound of stone at the east end of the lode line. A post was standing with the remains of a box "in which the location notice was said to have been posted; that post and the box on it faced an outcrop of quartz near a tunnel." The witness said he found no evidence on the southeast corner, on the southwest corner, or on the corner on the north side line, and he stated that "the southeast corner fell in the burned portion of Forbestown, that had burned probably since the posts were set." The witness

described the courses and distances he ran, which differed in more or less degree from the calls in the amended location certificate and from the claim as delineated by the remaining monuments. We are not inclined to detail his testimony at length.

[5] "Location notices should be liberally construed, having reference to the circumstances under which, and the character of the parties by which, they are generally made; and in determining the sufficiency of a location notice, the most important guide is the purpose of the notice, which is to identify the land claimed with reasonable certainty." Green v. Gavin, 10 Cal. App. 330, 101 Рас. 931. In Talmadge v. St. John, 129 Cal. 430, 62 Pac. 79, it is held that "the proceedings of miners in the location of mining claims are to be regarded with indulgence, and their notices of location are to be liberally construed." It is true that the surveyor drew in some of the lines as they were marked on the ground in order to bring the boundaries of the claim within the limits prescribed by law. In Lindley on Mines, § 396, citing Doe v. Sanger, 83 Cal. 203, 23 Pac. 365, it is said, "For the purpose of obtaining parallelism, or casting off excess,

the lines may be drawn in." We hold that, while the markings on the ground were not exactly where they should be, they were sufficient, taken with the amended location certificate, "to identify the land claimed with reasonable certainty."

[6] Section 1426 of the Civil Code requires "a description of the claim by reference to some natural object, or permanent monument, as will identify the claim located." It is the contention of appellant that the Samson location certificates do not show a compliance with that requirement. It is held in Talmadge v. St. John, supra, that "a reference to permanent posts or stone monuments erected on the exterior boundaries is sufficient." The testimony of the witness, Reaves, as to his finding stone monuments on the exterior boundaries of the claim, and the reference in the amended location certificate thereto, satisfy the requirement of the Code section in this respect.

[7] Appellant contends that a map made by the surveyor and appearing in the transcript, which purports to show the area in conflict between the locations of plaintiff and defendant, is without support in the evidence. As we have seen, the surveyor testified that he found four fixed monuments, on certain corners and one side line of the claim, and with one boundary line fixed the remaining three could easily be established. The witness testified:

"I established no point; I simply extended the original, the mound pointed out to me by Mr. Batt, being the locator, and pointed out to me that he located to be the original location monument. In surveying, I considered both the data on the ground, as well as that given in the notice of location."

We think the correctness of the map is sufficiently established by the evidence. As to the contention of appellant that the location as established by the surveyor is excessive, it appears from the map that the claim does not form a perfect parallelogram. From the northwest and the southwest corners the respective lines run to the north and south center side stakes on a course S. 42° 08′ E., and from the latter points to the northeast and southeast corners on a course S. 68° 28′ E. As a consequence of the angles thus shown, the west end line is 627 feet and the east end line is 608 feet in length. But the surveyor testified that the distance "would be 600 feet at right angles." So as to the distance from the point of location to the original mound in the center of the south side line, which appellant asserts exceeds 370 feet. We have the testimony of the surveyor that he surveyed a claim 600 by 1,500 feet.

[8] We cannot hold with appellant in his claim that the Annex placer location is void because respondent failed to show that the land was valuable for placer mining. In Garibaldi v. Grillo, 17 Cal. App. 540, 120 Pac. 425, we held:

"Where minerals have been found, and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success in developing a valuable mine, the requirements of the statute have been met."

Plaintiff testified that when he located the placer claim on January 1, 1909, he made a discovery of gold therein; that he panned and found there was some gold on the claim;

that he has mined the claim more or less ev

ery year-"placer mining, washing the earth." He stated that he had kept no record of how much gold he had taken out; that he mined with water, using sluice boxes and ground sluices. He has done the assessment work each year since locating the claim. Under these circumstances, it must be held that the land was valuable for placer mining.

Other points made by appellant we do not consider necessary particularly to notice. This seems to be a case where a miner, in good faith, located mining claims on unoccupied public domain of the United States. At the time of the commencement of the action he had been in possession of one claim for almost six years, and of the other for nearly four years. The annual assessment work had been done by him on both claims. Gold had been found in both, and a tunnel 212 feet in length had been run on the lode claim.

The clerk's transcript and the reporter's transcript were filed in this court on the 13th day of November, 1917. No briefs have been filed and the time for the filing thereof has not been extended. The case was placed upon the April calendar of this court, at which time there was no appearance on behalf of appellant, and the Attorney General moved that it be submitted on the record. On the authority of People v. Wagner, 171 Pac. 699, and the cases therein cited, the judgment is affirmed.

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Under Code Civ. Proc. § 579, providing that in an action against several defendants the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper, where two joint tort-feasors are sued and one of them suffers default, a judgment may be taken against him and the action proceeded with against the other and a separate judgment rendered against him. 2. MANDAMUS 31-COMPELLING TRIAL OF CASE-DISCRETION.

Under Code Civ. Proc. § 579, where in an action against two joint tort-feasors one sufferWe think the judgment should be affirmed, ed a default and judgment was entered against and it is so ordered.

him, the court had no discretion, although default had been set aside and appeal from order setting aside was pending, to determine whether

We concur: CHIPMAN, P. J.; BUR- the trial should proceed as to the other defendNETT, J.

(36 Cal. App. 739)

PEOPLE v. CLARK. (Cr. 423.)

ant, and writ of mandate will lie to compel judge to try action.

Original application for a writ of mandate by Robert McNeely against the Superior

(District Court of Appeal, Third District, Cali- Court of Los Angeles County, Charles Wellfornia. April 9, 1918.) CRIMINAL LAW 1130(4)-APPEAL-FAILURE sued.

TO FILE BRIEFS OR APPEAR.

Where transcripts were filed November 13, 1917, but no briefs were filed within the time extended for their filing, and the case was placed upon the April calendar, at which time there was no appearance by accused, the case may be submitted on the record on motion of the Attorney General.

Appeal from Superior Court, Sacramento County; Malcolm C. Glenn, Judge.

J. H. Clark was convicted of grand larceny, and he appeals. Affirined.

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Martin I. Welsh and Ralph H. Lewis, both of Sacramento, for appellant. U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People.

PER CURIAM. Defendant appealed to this court from the judgment of the superior court of the county of Sacramento, under which he was sentenced to serve a term in state's prison, having previously been convicted by a jury of the crime of grand larceny.

born, Judge thereof. Peremptory writ is

W. A. Alderson, of Los Angeles, for petitioner. G. F. McCulloch, of Los Angeles, for respondent.

WORKS, Judge pro tem. This proceeding concerns a certain action in which the petitioner, as plaintiff, sued one Connell and one Hill for damages as joint tort-feasors. Hill appeared in the action and made answer to the complaint, but the default of Connell was taken, whereupon the petitioner elected to proceed against the latter under the default, and judgment in the sum of $1,500 was entered against him. Connell then came forward, and presented a motion to set aside the default, and the motion was granted. The petitioner appealed from the order thus made, and the appeal is now pending. The action was set down for trial against Hill, but, at the time set, the respondent refused to proceed with the hearing. The petitioner then filed in this court his application for a writ of mandate, requiring the respondent

to try the action as to Hill, and an alterna-2. TELEGRAPHS AND TELEPHONES33(1) tive writ was issued.

[1] It is contended that the petitioner is entitled to the writ under the terms of section 579 of the Code of Civil Procedure, which reads:

"In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper."

The respondent contends, however, that, in an action against several joint tort-feasors, a several judgment is not proper, and cites McCool v. Mahoney, 54 Cal. 491, and Marriott v. Williams, 152 Cal. 705, 711, 93 Pac. 875. These cases decide that where an action is tried against joint tort-feasors, only one judgment may be pronounced against them all; but a later case has announced the rule that where, as in the action now in question, two joint tort-feasors are sued and one of them suffers default, then a judgment may be taken against him and the action be proceeded with against the other and a separate judgment be rendered against him. Cole v. Roebling Construction Co., 156 Cal. 443, 105 Рас. 255.

[2] It is insisted that, after judgment had been rendered against Connell, it was left to the discretion of the respondent to determine whether a trial should proceed as to Hill, and the well-known rule is invoked that the writ of mandate will not run to control judicial discretion. Under section 579 the court did have a discretion to determine whether a judgment should be rendered against Connell in advance of a trial against Further than that there was no discreHill. tion reposed in the court. Under the latter part of the section the petitioner has the right

FILING OF RATES - FURNISHING WIRELESS
SERVICE.

Public Utilities Act (St. 1911 [Ex. Sess.] p. 18) § 18, requiring, under penalty imposed by section 76, every telegraph corporation to print and file with the Railroad Commission a schedule showing the charges for the transmission of messages, does not include the kind of service performed by a wireless company in installing apparatus on a steamship and furnishing an operator therefor.

3. TELEGRAPHS AND TELEPHONES 33(1) FAILURE TO FILE CHARGES ILLEGALITY OF CONTRACT STATUTE.

Even if Public Utilities Act, § 18, requiring every telegraph corporation to print and file with the Railroad Commission a schedule of charges for the transmission of messages, includes the service furnished by a wireless company in installing apparatus on a steamship and supplying an operator, it does not render a contract for such service unlawful or void, where the wireless company has not complied

with the statute.

Appeal from Superior Court, City and County of San Francisco; J. M. Seawell, Judge.

Action by the Marconi Wireless Telegraph Company of America, a corporation, against the North Pacific Steamship Company, a corporation. From the judgment for plaintiff, both parties appeal. Affirmed on each appeal.

Samuel Knight and F. E. Boland, both of San Francisco, for plaintiff. Marcel E. Cerf and Charles H. Sooy, both of San Francisco, for defendant.

KERRIGAN, J. This is an action wherein plaintiff seeks to recover from the defendant certain sums of money claimed to be due it for the installation and operation of certain wireless equipment on vessels in the

to press the action for trial, and it is the du- possession of the defendant, under two writty of the respondent to try it.

A peremptory writ of mandate will issue as prayed for.

We concur: CONREY, P. J.; JAMES, J.

(36 Cal. App. 653)

ten contracts. The complaint is in two counts. The first count is based on a contract dated January 15, 1914, and the second upon a contract dated July 1, 1913. Judgment went for the plaintiff on the first count for the sum of $1, and on the second count for the sum of $1,620. Both parties being dissatisfied with the judgment have appeal

MARCONI WIRELESS TELEGRAPH CO. ed therefrom, plaintiff from that part thereOF AMERICA v. NORTH PACIFIC

S. S. CO. (Civ. 2305.)

of which awards to it only nominal damages, and defendant from the portion thereof

(District Court of Appeal, First District, Cali- by which plaintiff recovers the sum of $1,620. fornia. April 2, 1918.) Considering plaintiff's appeal first, it is

1. DAMAGES 189-BREACH OF CONTRACT- | disclosed by the record that in the month of

PRIMA FACIE CASE - DAMAGES TO UNPAID
PRICE.

In an action for breach of contract whereby plaintiff was to install wireless equipment on defendant's steamer, keep it in repair, and furnish and pay a competent operator, it being obvious that plaintiff would be put to expense in performing, its mere introduction of the contract and showing of breach did not make a prima facie case of damages to the extent of the unpaid contract price; the burden being upon plaintiff to prove the profits it would have made had defendant complied with its contract and paid for the services.

January, 1914, the parties entered into the first of the above-mentioned contracts, whereby it was agreed that the plaintiff would install wireless equipment in a certain steamship in the possession of the defendant under a charter, and would provide and pay a competent operator, for which services defendant agreed to pay to plaintiff $100 per month, and the contract was to continue for one year. Under this contract the plaintiff installed wireless equipment on said vessel

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and furnished a competent operator, and de-an advertisement once a month for 12 fendant paid to plaintiff the sum of $100 per months for a certain sum to be paid when month up to March 31, 1914, when it discon- the contract was fully performed. The pub

lisher refused to consent to the cancellation and continued the publication for the entire period, and upon the advertiser declining to pay therefor brought an action for the contract price. Upon the trial the plaintiff proved the contract and its performance, and rested. Thereupon the defendant produced evidence to the effect that it had canceled the contract, and rested. It was held that the contract was prima facie the measure of damages, and the rule applied that where a contract for future employment had

tinued such payments. On the 7th day of April, 1914, the charter under which the defendant held the vessel was canceled and the ship was taken over by the owner, whereupon the defendant sought to cancel the contract, but plaintiff refused to permit it to do so, and after the period covered by the contract had elapsed brought this action. There is no dispute between the parties as to the measure of damages applicable to the case if the plaintiff is entitled to any damages at all. If we understand the contentions of the parties the damages recoverable been entered into and afterwards revoked by the plaintiff consist of the profit which by the employer, in an action for breach of

would have resulted to it if it had been permitted to carry out its contract, plus any costs and expenses incurred as a consequence of the breach. McConnell v. Corona, 149 Cal. 60, 65, 85 Pac. 929, 8 L. R. A. (N. S.) 1171; Civ. Code, § 1512; Ahlers v. Smiley, 163 Cal. 200, 205, 124 Pac. 827; 13 Сус. 156. The question upon which counsel disagree is as to where lies the burden of proof, plaintiff's contention in that behalf being that the payments required by the contract furnish prima facie the measure of damages, and that the burden of proof was on the defendant to show, if it could, that such were not the actual damages. Applying this principle, it is pointed out by plaintiff that upon the submission of the case, it having shown the facts as above narrated, and the defendant having shown nothing in mitigation of damages, the plaintiff was entitled to judgment for $900.

contract the damages are prima facie the amount of wages for the full term, and the burden of proof is upon the defendant to show facts in mitigation of damages. Commenting upon the conclusion arrived at in that case the court said:

"In reaching the result above indicated, we wish it understood that it is not our purpose to extend the rule beyond the facts found in

this case. Nor is it our purpose to limit or impair the rule that, in the breach of an ordinary contract for the manufacture of an article or the supplying of goods or merchandise, including that which is known as ordinary job printing, the damage is the difference between the contract price and the cost of the goods, merchandise, or manufactured article, in which the burden of showing the damages rests on the

plaintiff. The distinguishing feature in this case, as we regard it, is that the publishing of an advertisement in a periodical is the same as the publishing in a daily or weekly newspaper, which involves the investment of no additional capital or the use of any material other than the ink used and the paper upon which it is printed, and these articles are of such trivial value as not in our judgment to change the character of the contract from one for services to be rendered."

There is a class of cases in which if the obligor to the contract repudiates it before the obligee has had an opportunity to perform, the contract price is prima facie the measure of damages, and matters of mitigation and reduction must be shown by the obligor. Such are cases of contracts for personal services (Milage v. Woodward, 186 N. Y. 252, 78 N. E. 873, Howard v. Daly, 61 Ν. Υ. 362, 371, 19 Am. Rep. 285), contracts to pay an attorney's fee (Reynolds v. Clark or to construct a tunnel (McConnell v. Co

[1] While the present case in some of its features is similar to the cases cited, it is more like an action for breach of contract for board or lodging (13 Cyc. 163), or for goods sold and delivered (Hellings v. Heydenfeldt, 107 Cal. 577, 585, 40 Pac. 1026; Winans v. S. L. Co., 66 Cal. 61, 4 Pac. 952),

County, 162 Mo. 680, 63 S. W. 382), or an rona City W. Co., 149 Cal. 60, 85 Pac. 929, architect's commission (Walker v. Lund- 8 L. R. A. [N. S.] 1171), or a contract to furstrom, 132 Mo. App. 367, 112 S. W. 1), and the commissions of a real estate broker (Alderson v. Houston, 154 Cal. 1, 96 Pac. 884; Norman v. Vandenberg, 157 Mo. App. 488, 138 S. W. 47), or contracts for the publication of advertisements (Star Publishing Co. v. Knosher & Co., 62 Wash. 215, 113 Pac. 569, 34 L. R. A. [N. S.] 404, Ann. Cas. 1912D, 281; McDermott v. De Meridor Co., 80 N. J. Law, 67, 76 Atl. 331; Ware Bros. Co. v. Cortland Cart & C. Co., 192 N. Y. 439, 85 N. E. 666, 22 L. R. A. [N. S.] 272, 127 Am. St. Rep. 914).

nish freight (Utter et al. v. Chapman, 43 Cal. 279), in which cases actual damages only are recoverable; and the burden of showing such damages rests on the plaintiff. Here the plaintiff was to install wireless equipment and keep it in repair, and to furnish and pay a competent operator. It is obvious that plaintiff would be put to more than trivial expense in performing its part of the contract, and that its profit would be substantially less than the contract price. Hence, we think it cannot be held that the mere introduction of the contract, and showing the breach thereof, made out a prima facie case of damages for the unpaid con

In the last-mentioned case an advertiser desired to cancel its contract with a pub

77).

the fact that the proof of the profit which should be guilty of a misdemeanor (section plaintiff would have made if the defendant had complied with its contract was chiefly, if not entirely, within the control of the former, furnishes a strong reason for placing that burden upon it. We think it follows that the trial court correctly concluded upon the showing made that the plaintiff was entitled to no more than nominal damages.

We will now consider defendant's appeal. In its answer it alleged, as it now contends, that the contracts here sued upon are void be cause the plaintiff failed to file with the Railroad Commission of this state a schedule of rates for the transmission of messages between points within and without the state under the provisions of section 18 of the Public Utilities Act. The trial court rejected this contention and rendered judgment for plaintiff to $1,620 under the second count,

Assuming, without deciding, that the plaintiff is within the category of section 18 of this act, and that the company would be subject to the penalties therein provided, and its officers guilty of misdemeanors, for noncompliance with the provisions of the act, still we think this contract is not void, as contended by the defendant, so as to prevent recovery upon it. Section 18 of the act does not undertake to make unlawful the transaction of business if the required schedule of rates shall not have been filed. Nor is this a case where a member of the public desiring to send a message is without the benefit that the filing of the company's rates would give him. It is a case of a contract for a special service at an agreed price, arrived at by negotiation between the parties.

as before stated. From a stipulation of facts The contract provides, among other things, entered into by the parties it appears that that the plaintiff will send from and receive the plaintiff is engaged in the business of on board the defendant's ships through its fabricating, leasing, renting, and selling wire-coast stations in the United States, or beless equipment and also in the business of tween any ships equipped with plaintiff's transmitting messages thereby; that it rents system, messages unlimited in number resuch equipment to shipowners under con- lating to the defendant's business, for which tracts similar to those here involved; that the defendant pays a fixed sum, and furit has shore stations so equipped that it transmits messages from and to ships equipped with its apparatus for hire for any one other than the shipowners; that such messages are transmitted without charge to the shipowner; and that no messages are transmitted from one station to another in California. It also appears from the stipulation of facts that the contract which is now being discussed, made July 1, 1913, like the first contract considered, provided that the plaintiff was to install on certain steamships in the possession of the defendant wireless equipment, and to furnish and pay competent operators, for which service it was to receive a specified sum per month for a certain length of time, and that there became due to plaintiff under such contract the sum of $1,620.

nishes certain accommodation for the operators and the equipment, nor would the fact that the plaintiff exacts the same price from other shipowners for similar service bring this contract within the purview of the act in question. We think this case comes within the principle applied in Luchini v. Roux et al., 29 Cal. App. 755, 157 Pac. 554, in which the plaintiff sought to recover from the defendants the agreed price of a quantity of milk sold and delivered to them. The defense set up was that the contract was void because the plaintiff, a dairyman, had failed to comply with sections 6 and 16 of the so-called Dairy Act, trequiring those engaged in the dairy business to register as provided by the act. This court held that while the act imposed a penalty upon a dairyman who neglected to comply with its

The Legislature of this state declared provisions as to registration, such failure

did not render unlawful a contract made for the sale of milk produced in his dairy.

[2,3] So here, even if section 18 of the Public Utilities Act in its requirement for the filing of schedules of rates included the kind of service involved in this case-and we do not think it does it does not render unlawful or void a contract for such service. The penalty imposed by section 76 of said

(Stats. 1911, p. 18 et seq., § 18, p. 30) that upon the Public Utilities Act becoming effective every telegraph, including wireless, corporation (section 2) should print and file with the Railroad Commission a schedule showing the charges for the transmission of messages between all points within this state and all points without the state upon its route, and between all points within the state and all points without the state upon act is aimed directly at the failure to file every route operated or controlled by it the schedule of rates, and not at the act of (section 18); and the Legislature further transmitting business without having filed declared that every telegraph, including wire- such schedule; nor is there anywhere in the less, corporation which should violate or fail act any inhibition against transacting busito comply with any provision of the act ness before compliance with such requireshould be subject to a penalty for each of- ment. The situation here is entirely dissimifense (section 76), and that every officer of lar from that where a license is required such corporation who should violate or fail for the conducting of business and its prohibito comply with any provision of the act tion in the absence of such license. There

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