20th, from which it appears that he was not on that date the managing agent, etc., negative or tend to prove that he was not on January 13th the managing agent in California of defendant. Neither the motion nor affidavit is directed to the time of the service of the summons.

At the hearing of the motion another affidavit of Hart was submitted, where it was averred that he never had at any time been the managing agent of defendant corporation. Regarding this as having reference to and covering the time when service was made of the summons, and conceding the motion to have been directed to such time, it is sufficient to raise an issue of fact as to which there is a conflict between the affidavits of Hart and the person making the affidavit of service; as to which, like any other fact in dispute, this court will not disturb the finding of the trial court when there is a substantial conflict of evidence.

Conceding our position thus far to be correct, appellant, nevertheless, contends that it is shown by Hart's affidavit, which as to such fact is uncontradicted, that defendant was not at the time of service either actively or otherwise engaged in transacting business in California. That a foreign corporation must be "doing business" in this state to justify service upon it through a managing agent, is required by section 411, Code of Civil Procedure. (See, also, Jameson v. Simonds Saw Co., 2 Cal. App. 584, [84 Pac. 289].) Such objection to service of process, however, may be waived, and inasmuch as this was not made one of the grounds of the motion and notice thereof given, as required by section 1010, Code of Civil Procedure, defendant must be deemed to have waived any objection to service based upon such ground. We therefore conclude the court did not err in its ruling upon the motion to quash the summons and vacate the service thereof.

Defendant contends that its demurrer should have been sustained, upon the ground that the complaint failed to state a cause of action. The sole purpose of the action was to recover from defendant the sums of money agreed to be repaid in accordance with the terms of the agreements. The tender of the return of the stock, if such tender was necessary, left nothing to be done by plaintiff. The consideration had passed to the obligor, and the only duty imposed upon defendant was the obligation to repay the sums of money specified. (Hel

lings v. Heydenfeldt, 107 Cal. 577, [40 Pac. 1026].) This fact brings the case within the provision of section 3302, Civil Code, which provides that, "the detriment caused by the breach of an obligation to pay money only is deemed to be the amount due by the terms of the obligation, with interest thereon." As said in Bartlett v. Odd Fellows' Bank, 79 Cal. 218, [12 Am. St. Rep. 139, 21 Pac. 743]: "When the plaintiff, as here, alleges facts to exist, which, if proved, would entitle him to recover the sum of money he demands from the defendant, he has shown, so far as the recitals of the complaint can, that he has sustained damages." Having alleged that defendant had promised to pay a specified amount for which judgment is prayed, it was unnecessary to allege that plaintiff had been damaged in such sum. (Bank of British Columbia v. Port Townsend, 16 Wash. 450, [47 Pac. 896].) The value of the stock was immaterial for the reason that plaintiff's right to repayment did not depend upon its value; and as to the cause of action, it is likewise immaterial whether or not defendant accepted plaintiff's tender of a return of the stock. The second agreement extended the time within which plaintiff might demand performance of the obligation. to repay the purchase money, and also provided for the payment of interest thereon and repayment of the assessment. To such extent the first agreement was modified. Such modification, however, could not have the effect of releasing defendant from the terms of the first agreement. There was no error in the ruling of the court upon the demurrer.

The court found against the special defenses set up in the answer. It is contended that such findings are unsupported by the evidence, and that the court should have granted defendant's motion for a nonsuit. It is unnecessary to quote the evidence; suffice it to say, an examination of the record satisfies us that it is ample to justify the ruling of the court in denying defendant's motion for a nonsuit and fully supports the findings. The transaction did not constitute an unconditional original subscription to the stock of defendant, but was a conditional purchase of stock, which the evidence tended to show had been theretofore issued to another and by him returned to the company. The purchase was made upon conditions fully set forth in a written contract which was contemporaneous with and part of the transaction of

purchase. (Jefferson v. Hewitt, 95 Cal. 535, [30 Pac. 772].) Nor was the agreement secret. On the contrary, it appears from the evidence of witness Sharp that early in January, at least, plaintiff was, through him, advised by the secretary of the company that "they had a copy of the agreement in the office, and that the matter would be presented to the board of directors at the next meeting." Neither was there any want of consideration. The purchase price paid subject to the conditions contained in the agreement was a sufficient consideration for defendant's promise to repay if plaintiff, after inspection of the property, was dissatisfied therewith. In the absence of the rights of creditors being involved, and none appear, we perceive no reason why this agreement should not be enforceable against the corporation. (Vent et al. v. Duluth Coffee & Spice Co., 64 Minn. 307, [67 N. W. 70].) Says Mr. Cook in his work on Corporations (sec. 83): "Instead of subscribing for stock, a party may make a contract with a corporation to take the stock with the right to return it and receive back the purchase price within a certain time. Such a contract is legal, and the stock may be returned and the money recovered, if corporate creditors' rights do not intervene."

This being true, the extension of time for repayment and the payment of $200 on account of the assessment furnishes ample consideration for the contract dated March 12, 1904, whereby defendant agreed to repay both sums with interest thereon at the expiration of six months, if plaintiff elected to demand the same. It is true this agreement was made subject to ratification by the board of directors, and appellant contends that the board failed to ratify it. Through its president and secretary the corporation must be deemed to have had notice of the agreement at the time of the making thereof. It appears from the minutes of the proceedings of its board of directors that it was formally submitted to the board for action on May 9, 1904. No action, however, was taken thereon until October 21, 1904, nearly six weeks after plaintiff, at the expiration of the time specified in this agreement, had made formal demand for repayment, which demand defendant then refused and by its formal resolution disaffirmed the agreement. Conceding this contract so made on behalf of the corporation to have been unauthorized, never

theless, it was one which it had authority to make, and its failure to disaffirm the same for more than seven months after notice thereof, coupled with the fact that it retained the $200 paid thereunder, if not a technical ratification of the contract, was, nevertheless, sufficient to estop the corporation from pleading want of ratification as a defense. (Clark

& Marshall on Private Corporations, secs. 716d and 716c; Phillips v. Sanger Lumber Co., 130 Cal. 431, [62 Pac. 749]; Curtin v. Salmon River etc. Co., 141 Cal. 308, [99 Am. St. Rep. 75, 74 Pac. 851]; Blood v. La Serena L. & W. Co., 113 Cal. 221, [41 Pac. 1017, 45 Pac. 252].)

The judgment is affirmed.

Allen, P. J., and Taggart, J., concurred.

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[Crim. No. 133. Second Appellate District.-November 5, 1909.] THE PEOPLE, Respondent, v. T. J. GARWOOD, Appellant. CRIMINAL LAW-ROBBERY-TESTIMONY OF ACCOMPLICE SUFFICIENT CORROBORATION.—Where a robbery charged was committed at a store on the corner of Temple and Olive streets, in Los Angeles, and two others were jointly indicted with defendant for the same offense, and one of them as an acknowledged accomplice testified that defendant performed the office of a lookout on Temple street while they approached the store on Olive street, and when all appeared safe the defendant was to signal them, whereupon they entered the store and robbed it, and the three shared equally in the booty, the testimony of the accomplice was sufficiently corroborated by two witnesses, who crossed Temple and Olive streets fifteen minutes before the robbery and saw defendant on Temple street about one hundred feet from the store, and saw the other two defendants approaching the corner on Olive street, and saw the defendant looking toward them and the store.

ID.-TESTIMONY TENDING TO CONNECT DEFENDANT WITH CRIME-CORROBORATION OF EVERY DETAIL NOT REQUIRED.-It was not necessary that the corroboration of the accomplice should extend to every detail covered by his testimony, but it is sufficient that the corroboration of his testimony as to the position of the defendant, as that of a lookout, and as to his conduct in observing the store and the approach of his codefendants thereto, tended of itself to connect de

fendant with the commission of the offense, although it is slight in degree, and entitled, when standing by itself, to but little consideration.

I. RELUCTANCE OF ACCOMPLICE TO TESTIFY-IMPROPER ANSWERSCHANGE OF DISPOSITION-REPETITION OF QUESTIONS PROPERLY ALLOWED.-Where the accomplice was at first reluctant to testify and gave evasive and erroneous answers to questions, and subsequently changed his disposition and testified readily to further questions, the court was justified in allowing a repetition of the questions improperly answered. ID.--HARMLESS RULING UPON EVIDENCE-NERVOUS APPEARANCE OF CODEFENDANTS.-Conceding that the testimony of a witness who saw the codefendants approaching the store that they appeared nervous, as if they feared somebody might watch them, was inadmissible, and that the court erred in refusing to strike it out, yet, since the evidence had no relation to the defendant, his rights could not have been prejudiced by the ruling.

JD. RUNNING TIME OF STREET-Cars-STATEMENT NOT HEARSAY.-The testimony by the foreman of a street-car line that its running time of Temple street cars was the same at the time of the commission of the offense as it was at the time of the trial was not hearsay evidence, but of a fact within the personal knowledge of the witness, the time schedule not being offered in evidence.

ID.-VERDICT OF JURY NOT APPEALABLE-APPEAL DISREGARDED.—The verdict of the jury in a criminal case is not the subject of an appeal under the Penal Code, and an appeal taken therefrom must be disregarded.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Curtis D. Wilbur, Judge.

The facts are stated in the opinion of the court.

Willis & Robinson, for Appellant.

U. S. Webb, Attorney General, and George Beebe, Deputy Attorney General, for Respondent.

SHAW, J.-Defendant was convicted of the crime of robbery and appeals from the judgment and an order of the court denying his motion for a new trial.

Appellant's chief contention is that the record discloses no evidence tending to connect him with the commission of the crime, other than that of an acknowledged accomplice by the