and bounds, containing seventy-two acres of land, situate in the city and county of San Francisco, near the Mission Dolores. At the time of his death Carman left a last will and testament which was admitted to probate, and the defendant and one Theodore Adams were appointed executors of the will. As such they qualified and administered the estate; and, upon a settlement of their final accounts, the probate court, on the seventeenth of April, 1876, "adjudged and decreed that the real estate, as described in the inventory of said estate, and the account therein, filed on the tenth day of June, 1852, be, and the same is hereby distributed, to wit:

Seventy-two (72) acres of land, situated at the Mission Dolores, to which the deceased held a pre-emption right, be, and the same is hereby distributed to Margaret C. Wheeler, sole legatee under and by virtue of the will of William L. Carman, deceased."

The descriptive clause of the decree contains the description of the land as it was inventoried and subsequently accounted for in one of the annual accounts of the executors. By the decree, the plaintiff claimed to be entitled, as sole distributee, to the tract of land as described in the complaint. But she charged that it had been lost to the estate and to her by the inexcusable negligence of the defendant as one of the executors of the estate, and therefore she sued to recover its value.

In answer to her complaint, the defendant denied seizin or possession by the testator of the tract of land described in the complaint, knowledge or possession of it by the executors, or that they were chargeable therefor, and specifically denied all charges of negligence, etc. One of the questions, therefore, was whether the land described in the complaint was a part of the estate of the testator, which came to the knowledge and possession of his executors.

Upon that question the plaintiff offered in evidence the decree of distribution, accompanying the offer with the statement that she would follow it up by the oral testimony of witnesses, to the effect that the seventy-two acres of land, as described in the decree, were known as a trdct of land bounded as set forth in the complaint; that the testator died in the actual occupation of said tract; and that the defendant, as executor, took possession of the same as the property of the estate.

The decree constituted the basis of the plaintiff's right to recover: Wheeler v. Bolton, 54 Cal., 302. If it was void, the court properly excluded it as evidence. If it was valid, the Court erred in excluding it, and the order granting a new trial was correct.

It is not claimed that the court that rendered the decree had not jurisdiction to render it; but the contention is, that the description of the land, attempted to be distributed by the decree, did not attach to any particular tract of land; and that the laud distributed is not the land described in the complaint. It is observable that the decree distributes to the plaintiff 72 acres of land situated at the Mission Dolores, to which the deceased held a pre-emption claim." In 1850 the pre-emption laws had not been extended over

California; there could, therefore, have been no "pre-emption claim' to the land in a legal sense; but the term "pre-emption" was merely a false designation of a possessory right, which possessory right, at that time, under the laws of the state, was recognized as property and the subject of sale, etc.

As a false designation, however, it does not prejudice the other particulars of the description: sub. 1, sec. 2,077, C. C. P. The decree, therefore, distributed whatever interest the testator had in a tract of land containing "72 acres, situated at the Mission Dolores, to which the testator had a pre-emption right.' In itself that would be considered insufficient to attach to any particular tract of land; but it is a description which may be capable of identification by extrinsic evidence. And assuming that it was proved, as the plaintiff offered to prove, that the testator died in possession of seventy-two acres of land near the Mission Dolores, to which he had, or claimed to have had, a possessory right, and that that land came to the knowledge and possession of the executors of his estate, and that it was inventoried and appraised as part of the estate, and accounted for by the executors in one of their annual accounts to the probate court, and that the land thus described and known, is the identical land described in the complaint by metes and bounds, such proofs would go far towards rendering certain the description of the land in the decree, and identifying it with the land described in the complaint. The evidence was therefore admissible. It is well settled, that when the meaning of a will, or other written instrument, is certain and intelligible, the subject or object to which it is to be applied may be ascertained by extrinsic evidence, and when so ascertained will be taken as the meaning of the parties: Case v. Young, 3 Minn., 209; Morgan v. Burrows, 45 Wis., 211: Stanly v. Green, 12 Cal., 148; Bruck v. Tucker, 32 Id., 425.

We think the court erred in excluding the evidence offered by the plaintiff, and that it properly ordered a new trial.

Order affirmed.

MCKINSTRY, J., and Ross, J., concurred.

No. 8,495.

PEREIRA V. CENTRAL PACIFIC RAILROAD COMPANY.

Department One. Filed November 7, 1884.

LIABILITY OF RAILROAD COMPANY ON CONTRACT TO CARRY BEYOND TERMINUS-SHIPPING RECEIPT. -A railroad company that contracts to carry goods over its own and connecting roads, and deliver the same within a certain time at a destination beyond the terminus of its own line, is liable to the shipper for damages caused by delay in transportation over such connecting roads. Whether the contract of shipment provide for a carriage beyond such terminus is a question for the jury. Upon the determination of this question the provisions of the receipt delivered by the carrier to the shipper are not conclusive upon the latter.

APPEAL from a judgment of the superior court for San Joaquin county entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts.

W. L. Dudley, for the appellant.

Caleb Dorsey and D. S. Terry, for the respondent.

Ross, J. The main question in this case is, whether the defendant, whose road ends at Ogden, in the territory of Utah, contracted with the plaintiff to carry his fruit beyond its own terminus over other roads to the city of New York. That question was submitted to a jury in the court below, and the finding in effect was, that defendant did so contract.

It appeared in evidence that the plaintiff being desirous of sending to the New York market a lot of pears, applied to the general freight agent of the defendant corporation to know what defendant would charge him per car load, to be sent by passenger train, plaintiff at the time informing the agent that it was necessary that the fruit should be transported to its destination within ten or twelve days. The agent replied that he did not then know what it would cost, but thought about one thousand five hundred dollars per car load, and, further, that he could not send it through to New York by passenger train, but could send it by passenger train as far as Omaha, and from there to New York by fast freight train, and that thus sent it would reach New York within the time mentioned. The agent promised to let plaintiff know within a few days as to the terms upon which defendant would take the fruit, and accordingly wrote and sent to the plaintiff this letter:

CENTRAL PACIFIC RAILROAD COMPANY,
GENERAL FREIGHT OFFICE,

SACRAMENTO, CAL., Nov. 14, 1871.

"JOHN PEREIRA, ESQ., JAMESTOWN, TUOLUMNE CO., CAL.-Dear Sir: I am in receipt of your favor of November 10th, and have this day telegraphed you as follows: Fruit Stockton to New York, to Omaha by passenger train, thence by freight ten hundred and seventy-five ($1,075), C. Y., per car. Freight must be prepaid or else guaranteed by responsible parties. The current rates on wine Stockton to New York are as follows: Wine in wood, owner's risk of leakage, carloads of eighteen thousand pounds and over, two dollars and fifty cents per one hundred pounds-less than eighteen thousand pounds, and over three thousand, three dollars and fifty cents per one hundred pounds-three thousand pounds and under, four dollars and fifty cents per one hundred pounds. It is not probable that there will be any material change in these rates before next spring. Yours truly, C. W. SMITH, G. F. A.

Plaintiff accepted the terms thus proposed and accordingly delivered to the defendant on the twenty-third of November, 1871, one carload consisting of five hundred and thirty six boxes of pears, consigned to L. Benedict, New York city, and at the same time executed to defendant the guarantee it required that the freight money, one thousand and seventy-five dollars, would be paid to defendant on the delivery of the fruit in New York. Such delay occurred in

⚫ the transportation of this lot of fruit to its destination, that the re

No. 47.-2.

sult was it was damaged to such an extent as rendered it almost worthless, and the consignee therefore refused to receive it.

The next lot consisting of two hundred and thirty-five boxes of pears was delivered to defendant upon the same terms, and with a similar guarantee, on the eight day of December, 1871, and was never transported to New York at all, and resulted in a total loss to the plaintiff.

The evidence put before the jury in this case in support of the special contract relied on by the plaintiff is quite as strong if not stronger than the evidence given in Railroad Company v. Pratt, 22 Wall., 131, to establish a similar contract; and in that case the supreme court of the United States held the evidence sufficient to sustain the verdict of the jury to the effect that the undertaking of the company was to carry the property through to the point of final destination. In the case at bar it was understood by both parties that it was necessary that the fruit should be carried through to New York within twelve days at the farthest, and that to accomplish this it was necessary that it should be sent a portion of the way at least by passenger train. Defendant accordingly expressly agreed to carry it by passenger train as far as Omaha-a point beyond the terminus of its own road-and thence by fast freight train to New York-demanding at the same time, as it had the right to do, a guarantee from the plaintiff that the freight money should be paid to defendant upon the delivery of the fruit in the city of New York. When the first lot of fruit was delivered by plaintiff's teamster to the local agent of the defendant, the latter gave the teamster a receipt for the same, which was partly in print and partly in writing, acknowledging the receipt in apparent good order of the property, marked and consigned to L. Benedict, New York, and which receipt recites that "they (the railroad company) agree to deliver with as reasonable dispatch as their general business will permit, subject to the conditions mentioned below, in like good order (the danger incident to railroad transportation, loss or damage of combustible articles by fire while in transit, and unavoidable accidents excepted), station, upon the payment of charges. The company further agree to forward the property to the place of destination as per margin, but are not to be held liable on account thereof after the same shall be delivered as above. The company, however, guarantee the through rate of freight as designated below: Conditions: The company do not agree to carry the property by any particular train; nor in time for any particular market. It is a part of this agreement that all other carriers transporting the property herein receipted for, as a part of the through line, shall be entitled to the benefit of all the exemptions and conditions above mentioned."

at

*

*

It seems that a similar receipt was given by the local agent of defendant to plaintiff's teamster for the second lot of fruit.

It is contended on behalf of defendant, and was so set up in its answer filed in the cause, that the terms and conditions, stated in

the receipt, constituted the contract between the parties of this action for the transportation of the fruit in question. Whether or not this was so, was a question for the jury to determine in view of all the evidence. The simple delivery of a receipt to the shipper is not conclusive upon the latter: Tyler v. W. U. T. Co., 60 Ill., 431; Mich. Cen. R. R. Co. v. Hale, 6 Mich., 244; Adams Express Co. v. Haynes, 42 Ill., 89; Ill. C. R. R. Co. v. Frankenberg, 54 Id., 88. The court below properly left it the jury to say whether the shipments in question were made under the contract declared on by the plaintiff, or whether the terms and conditions stated in the receipts constituted the contract between the parties. The jury having found from evidence, which we think sufficient to support the verdict, that defendant undertook to carry the fruit through to New York, the the other companies are to be deemed the agents of the defendant, for whose fault it is responsible: Railroad Company v. Pratt, supra. Some minor points are made for the defendant, which we have considered, but see in them no sufficient ground for disturbing the judgment.

Judgment and order affirmed.

MCKINSTRY, J. and MCKEE, J., concurred.

No. 8,502.

RATHGEB V. TISCORNIA ET AL.

Department Two. Filed November 7, 1884.

CHANGE OF VENUE WHEN DEFENDANTS RESIDE IN DIFFERENT COUNTIES.-A change o the place of trial of an action, to the county in which most of the defendants reside, may be had, when all of the defendants who were served or have appeared unite in a demand for such change.

THE SAME DISQUALIFICATION OF JUDGE AS AFFECTING RIGHT TO CHANGE.-The disqualification of the judge of the county, to which such change is demanded, to try the case, does not affect the right of the defendants to have it transferred to such county for trial.

AFFIDAVIT OF MERITS-STATEMENT IN.- -The statement in an affidavit of merits that the defendant has fully and fairly stated the case in this action" is equivalent to a statement that he "has fully and fairly stated the facts of the said case.'

""

APPEAL from an order of the superior court for the city and county of San Francisco, granting the defendants' motion for a change of the place of trial. The opinion states the facts.

C. V. Grey, for the appellant.

Reddick & Solinsky, and A. C. Adams, for the respondents.

SHARPSTEIN, J. This action was commenced in San Francisco against sixteen defendants-fourteen of them reside in Calaveras county, one in Santa Clara, and one on whom the summons has not been served, and who has not appeared in the action, is in Italy. The fifteen on whom the service was had, appeared and demanded that the place of trial be changed to Calaveras county, where fourteen of them resided. The motion was granted, and this appeal is