The record-union., 1891-02-24

and fair hearing OH the merits. the public
| has no right of appeal, nor has any one
the, right to represent it. Plaintiff
probably desires a new trial for the pur-
pose of securing some additional relief in
regard to property matters, but as to such
matters the public has no more interest
than it has in any other action involving
property rights. PATERSON, j.
| Filled February 16, 1871
| Appeal from Superior Court, Los An
geles County-W. I'll. Clark, Judge.
For appellant, Brousseau & Hatch.
For respondent, FL. H. Appel.
DEPARTMENT ONE.
GODFREY PoIRIER.
Respondent,
VS.. No. 10, 7s4.
| MARY PAULINE GRAVEL.
| Appellant.
The plaintiff brought this action in
| April. 1889, to recover the sum of 81, $50
| on written instrument, which reads as
| follows:
Los ANGELES, Cal, February 8, 1888.
''S1 700
II hereby promise to pay to Godfrey
Poirier the sum OF seventeen hundred
dollars out of the net proceeds of the
products, whether mineral, timber,
wood or any other thing raised
or taken, from section 3 of town
ship IL north, range 10 west, of the San
Bernardino meridian, in Kern County,
State of California, the said sum to be
! so paid iii instruments, in such amounts
and at such times as / shall realize each
month from such products, after payment
OF all costs and expenses of the
gathering or obtaining and selling
such products. The said sum OF
money to be paid only and exclusively
| from such products of said land as | may
| be entitled to, and no other property OF
mine shall be subject to said debt or obli-
CATION. MARY PAULINE GRAVEL"
it is alleged in the complaint thai the de-
/ fendant, being the owner Of an undivided
one-halfintcrest ofthe land described, and
being indebted to the plaintiff in the sum
! of Si,109. executed and delivered to
plaintiff the instrument on the day of its
/ date, and the plaintiff then and there ac-
! ccPted the same; that since the making
and delivery OF said instrument by de-
| fendant 10 plaintiff, the said defcndaAt
! has sold, disposed ofand conveyed away to
| other persons tae said land and premises
! in said agreement described. and all
| mineral, timber and wood products;
| thereof and everything chat couid and
! might be gathered and raised from land.
and said defendant is no longer the owner
! thereof; That said defendant has not naid
! the said sum of seventeen hundred dol
lars, save and except the sum Of two hum
/ cred dollars, or theleabouts, and there is
! due, owing ana unpaid from defendant
| to plaintiff, the sum OF about fifteen hun
dred dollars" Wherefore Judgment is
asked for the sum of fifteen hundred dol
! lars and costs OF suit.
| The defendant demurred to the COM
| piaint on the ground that it did not s,a e
! facts sufficient to constitute cailSa ~
action, alid on The 9th OF May the dcInur-
rer was overruied and ten days allowed
to answer. fCur Gays later, notice OF tae
ruling on the demurrer was served on de-
! Igndant'S s attorneys, and on tifc 3ist OF
the same month, no answer having been
/ filed, Judgment by default was. entered
against The defendant by the clerk foi the
amount prayed lOr and costs. On the 7th
of June an execution on the Judgment
was issued and levied on defendants
! property, and notice of the time and
place Of sale WAS published. On the I'd OF
! July defendant served on plaintiff Il no.
| tice that on the Sth OF that month she
would move the court tor an ordcr vacat-
| ing the judgment and setting aside the
/ default taken, upon the ground that the
default was entered against her by mis-
take and inadVertence, and also upon the
ground that the judgment was irregular
| and void, because the complaint did not
state facts sufficient 10 constitute a cause
| OF action. This motion was subsequently,
! heard by the court upon afficl3vits intro
duced on both sides, and denied. The
defendant then appealed from the judg-
mcnt and the order denying her motion.
| l. 1t is c0ntcnded for appellant that
! her demurrer TO the complaint should
! have been sustained, but we think the
ruling proper.
The written instrument imported a
\ consideration for it's execution, and the
! burden Of showing want Of considera-
ton sufficient to support it was upon the
| defendant. Civil Code, Secs 1914 1851
The recital that the defendant ''being in
debted," executed the instrument, was
not necessary and may be rejected as sur
! plusage.
It is true that a complaint for breach
of contract must state the breach in un-
! equlvocal language. We think the COM
plant hero fully complied with this rule.
1t set out the contract whereby the defend
ant agreed to pay sum OF money in in
stallments, when realized by her from
! the products Of certain land which she
owned, and then alleged that she had sold
and conveyed TO other persons the land
and the products thereof and had not
! paid part of the money which she had
| agreed to pay. This being so. the Balance
unpaid became Immediately due and pay
able, and The plaintiff could maintain an
action for the recovery thereof. The case
in this respect is like that of Wolf VS..
Marsh (54 Cal. 22S). There the defendant
executed to the plaintiff a written agree
81
! OF money when realized from the profits
of certain coal mines in which he owned
an interest. Before the mines had Welded
any profits to the defendant he sold and
conveyed his interest in them to q
stranger. ''Hy so doing" it was said
by this court, "heI Voluntarily put
it out of his power ever to realize any
profits from the mines. However great
the yield of profits from them might be
after that, they could yield none to him.
And the principle is elementary, that 'if
| one voluntarily puts it out of his power
to do what he has agreed, he breaks his
| contract and is immediately liable to be
sued therefor, without demand. even
though the time specified for perform
ance has not expired. Bishop on Cont.
Sec. 1426.)" GSee also Love vs. Mabury, 50
Cal. 48D.
2. We cannot say that the court below
erred in refusing to vacate and set aside the
judgment on the ground that it was taken
against defendant through her mistake
and inadvertence. The affidavits intro
duced on the hearing of the motion were
conflicting in their statements. Those
read by the plaintiff very clearly showed
that defendants failure to answer in time
did not arise from mistake, inadyertAnce
or excusable neglect. The learned Judge
who heard the notion must have thought
that the plaintiffs atfidavits stated the
facts truly; and in this we are unable to
see that he WIS mistaken.
In our opinion the judgment and order
should be affirmed, and we SO advise
BELCHER, G..
We concur:
HAYNE, G..
FooTE, c.
THE COURT.
For the reasons given in the foregoing
OOInl0n INDIGNANT =