Los Angeles herald., 1891-07-12

said Steward, but the return bill shows
that ten Of these lots were broken by
forty-one suits. The defendant, it is
true, says that his book-keeper, who
signs this letter accompanying the re-
turn bill had no authority for writing it.,
still he was in the employ of the defend
ant, instructed to make out the bill and
send the same, and it was in the line
of his business to accompany it
with letter, and from the
fact that the goods were sent after the
letter received from the plaintiffs they
would be sent in pursuance to their in
struction, whether it said so in the let
ter or not. In other words, as view the
case, this letter of instruction, as it is
called, or letter by the plaintiffs giving
the conditions on which they would re-
ceive the goods returned, disposes of
this case. The defendant had his option
whether to return them according to the
terms proposed in the letter or to retain
them and recoup for damages, if they
were not the kind of goods ordered. He
saw proper, however, to accept the terms
proposed by the plaintiff and returned
the goods. The plaintiffs accordingly
received the goods so returned and sold
them, as they said they would do, at the
best prices. The goods were billed at
the price of 1882 when returned
and they were sold by the plaintiffs for
5000, making difference Of $282; this,
with the item of freight and small er-
ror, makes the amount for which the
suit is brought. There was much testl-
1nony in the.case and much of the argu-
ment of counsel in their briefs, which,
under the view take of the matter, cuts
no figure. 1t was N the nature of a
new contract or proposition on the part
of the plaintiffs to receive back the
goods on certain conditions, and the de-
fendant accepted that proposition, and
that is the end OF the matter, whether it
is hardship or not.
Judgment must 60 for the plaintiff.
J. L. Murphy was attorney for King
& Co.. Dooner & Burdette forJ. T. Shew-
ard. Mr.. Steward talks of taking the
case to the supreme court.
The case of the Southern California
National bank vs.. A. S. R. Fulton ct
al, in which dispute arose as to what
was real estate and what personal prop
erty, was decided as follows:
The real question in this case is
whether the articles sued for were part
of the realty or personal property; if a
part of the realty they went to the de-
fendant, Bryant, under his foreclosure
and sale.
The civil code, section 65S, furnishes
a definition of real property as follows:
"Real or immovable property consists of
land, that which is affixed to land, that
which is incidental or appurtenant to
land and that which is immovable by
law" A thing is deemed to be affixed
to the land when it is attached to it by
shrubs, or imbedded in it, as in the case
of walls, or permanently resting on it,
as in the case of buildings, or perma-
nently attached to what Is thus perma-
nent by means of cement, plaster, nails,
bolts or screws (Sec. $50, G. G. P.).
All the articles in question here,
with perhaps trifling exceptions, not
worthy of consideration, were attached
to the building and brick structure at
Burbank erected for the purpose of a
furniture manufacturing establishment,
or more permanently attached to some
thing in the building by nails, bolts or
screws. This rule is somewhat relaxed
in reference to fixtures as between land
lord and tenant, where it is understood
the tenant puts in machinery to be re-
moved, but as between vendor and
vendee and mortgagor and mortgage,
the rule is as stated in the code, and
the things so affixed to the realty be-
come part of it, and are fixtures and
60 with the realty.
Findings and judgment for the de-
PENDANTS.
AN IMPORTANT DECISION.
The examination of Stephen Connolly
for perjury, came up before Commits
sioner Van Dyke yesterday morning.
The defendant Connolly was charged
with false swearing in an affidavit made
before notary public in land contest
case. Messrs. w. A. Ryan and R. j.
Adcock, the attorneys for the defense,
raised an important and interesting
point "that notary public has no
authority under the laws of the United
States to administer an oath in such
cases, and that perjury cannot be based
on such affidavit" The commissioner
sustained the point and accordingly dis
charged Connolly. This decision is of
vital Importance to land claimants, as
the custom heretofore has been to re-
ceive such affidavits in the land Office.
THE DIVORCE MILL.
Emma L. Burns was divorced from
g. W. Burns by Judge Smith, in de-
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