The herald., 1894-03-04

ly divided between the three.
Collins not wanting to be known, Wal
lace was to draw upon Babcock, payable
az convenient. Collins would then
cause the bills to be guaranteed, and,
when due, paid by the California Ma
tional bank OF San Diego.
September 7, 1891, Wallace drew two
bills upon Babcock, payable Decem ber
Let, to the plaintiff. They were duly
presented to Babcock for acceptance,
were accepted. and payment guaranteed
by tbs San Diego bank.
Some three weeke before the maturity
of the bills it was understood Collins
and the bank were both insolvent. Wal
lace informed plaintiffs cashier that he
did not think Babcock had any means.
but he had, and would pay the bills.
At maturity il WAS fully known that
Collins and the bank were ipsolvent,
and for that reason the bills were not
presented for payment to Babcock when
they should have been.
The suit wac brought on the bills VS..
Babcock and Wallace. Judgment passed
against both, and Wallace appealed.
The bills not having been presented to
Babcock Tor payment when they be-
came due, nor within q reasonable time
ehOiCblecly w hllhC6 COuL00UH bUhb uC
cannot be held rs drawer.
The supreme court after full discus
sion OF the points raised SAYS that the
question was whether the bill was
drawn for the firm; did it create an
Indebtedness on the part of the part
nership? would Wallace have had re-
couree upon any one in the case of due
presentment. and a refusal to pay?
IL aQvQ fhot ~ aaavroo ar;Aark h ,uor,I 4
have had recourse against Collins, who
had agreed to pay the bills SO drawn,
and that neither Wallace nor the firm
was liable for the Indebtedness thus
created. The judgment and order are
reversed and new trial is granted.
The supreme court has decided the
case OF the Anaheim Union Water com
pany, respondent, VS.. Parker ct al, ap-
pellants, by reversing the judgment of
the lower court and remanding the case
for new ttial.
The court says in the opinion received
yesterday at the Los Angeles Office for
filing, that it would be necessary, if
they should state the facts upon which
all the points made by appellant are
based. practically to copy the statement
on notion for q new trial, as there
we're 81 assignments of error and speci-
locations OF insuficiencv of the evidence,
based upon 90 pages of the record.
The court made the following thrust
at the appellants COUNSEL "With the
exception OF those hereinafter referred
to they are entirely without merit, al
though sufficiently plausible as they are
stated to entail upon the court great
deal OF unnecessary labor in passing
upon them"
The facts of the case were that de-
fendant Gardiner was secretary of the
water company from January |, 1887,
until February, 1891. On the 18th of
February, 1889, the defendants Kraemer
and Parker as sureties, and Gardiner as
principal, executed and delivered bond
to the company of $1,000 for the faithful
performance of his duties.
1t was claimed by the plaintiff that
when this bond was executed Gardiner
held OF the moneys he had collected for
the company $S80.37; that between the
date OF the execution OF the bond and
September /, 1889, be held moneys be-
longing TO the plaintiff amounting to
$l6,073.52, including the $S80.37, and
that he paid in during that period $14,-
982, leaving balance due the corpora
tion OF $l09l6l. OF this amount there
was evidence tending to show that $1,000
was collected by Gardiner in August,
1889, on note for that amount executed
to one Broeckmann. but no record OF the
transaction appeared on the books, ex.-
cept the order OF the board authorizing
the issuance of the note.
The plaintiff recovered Judgment in
the lower court against the sureties for
$1,000 and costs of suit, and the appeal
was from the judgment and order deny
ing new trial.
With reference to one OF the instruc-
tions to the jury by the lower court,
the supreme court saya that it was err
roneoue. ut declared TO the Jury that
the sureties were liable for all moneys
collected by Gardiner, and not turned
over to the company prior to February
l6, 1889, and assumes that he was not q
defaulter in any sum prior to the time
OF the execution of the bond in suit. In
this assumption the learned Judge
usurped the functions of the jury. 1t
was for the latter to determine upon all
the circumstances of the case whether
Gardiner was a dsfaulter at the time the
bond was executed; and, if he was, the
sureties therein were not liable for his
dereliction." After quite long discus
sion OF the testimony the court orders
the judgment reversed as stated above,
and new trial granted.
The supreme court also ordered the
decree in the case of Paul SRinsevain, re-
spondent. We. W. A. Luce, @. s. Luce
and Olive b. Montana modified by de-
duction therefrom $500, the amount OF
the attorneys' fees allowed, and as, so
modified the judgment be affirmed.
The opinion WAS also received affirm
ing the judgment in the case of Wilcox
son, respondent, VS.. the City of San Luis
Obispo, appellant. The court, in decid-
ing the case. holds that it was not with
in the power of the municipal authori-
ties to include in the assessment the
cost OF grading and graveling the lands
taken for the widening of the street, and
that for that reason the assessment was
illegal and created in lieu upon the land
OF the plaintiff.
In concurring in the opinion, Chief
Justice Beatty adds a note, saying:
concur in the judgment not only upon
the grounds stated, but because | am OF
the opinion that the act OF 1889 is un-
constitutional.
Perhaps you would not think 80, but
very large proportion of disease in
New York comes from carelessness about
catching cold," says DIR. Syrus Edison.
LII Is such a simple thing and 80 COM