15. BREACH OF CONTRACT TO MANUFACTURE LUMBER-MEASURE OF DAMAGES.-The plaintiff and defendant entered into a contract whereby the plaintiff agreed to manufacture lumber, and the defendant agreed to purchase all that the plaintiff might manufacture, at a stipulated price, and to furnish him certain machinery for such purpose. The machinery furnished was inadequate, and by reason thereof the plaintiff was unable to manufacture as much lumber as he otherwise would have done. In an action to recover for the breach of such contract, held, that the measure of damages was the contract price for the lumber which the plaintiff was so prevented from manufacturing, less the expense he would have incurred in manufacturing said lumber over and above the amount necessarily expended under the circumstances in manufacturing the amount actually manufactured by him. Id. 16. STIPULATION IN BUILDING CONTRACT FOR ARBITRATION-CONSTRUCTION OF CONTRACT. A stipulation in a contract for building a railroad, that in case any disputes or differences arise between the company and contractors "as to the construction or meaning of the agreement or specifications, or sufficiency of the performance of any work to be done under it, or price to be paid, the same shall be referred to the chief engineer of the company, who shall consider and decide the same, and his decision shall be final," is valid, and the decision of the engineer on any of such matters is binding on the parties, in the absence of fraud or mistake on the part of such officer. Held, however, that a dispute as to the amount of work done by the con tractor was not included within such stipulation. D. S. P. & P. R. R. v. Riley (Col.), IV, 238.

17. CONSTRUCTION OF CONTRACT SUED ON-BREACH OF CONTRACT.-The plaintiffs and the defendant entered into a contract whereby the latter agreed to sell to the former ice, in such quantities as might be demanded, at a certain price. The plaintiffs agreed not to buy ice from any one else. During the continuance of the contract one of the plaintiffs bought ice from other parties. Held, that the same constituted a breach of the contract, and released the defendant from its obligations under the contract, although the ice was bought by such plaintiff for his individual use. Twomey et al. v. People's Ice Co. (Cal.), IV, 700.

18. CONTRACT-LIABILITY FOR ILLEGAL ACT-INFERENCES OF INTENTION.-A party is not bound for the consequences of an illegal act, from a mere suggestion in a conversation in regard to a matter of contract, unless there can be justly inferred from it an intention on his part to bind himself contractually. Andrews v. Runyon (Cal.), IV, SI. Martin v.

19. JUDGMENT AND ORDER affirmed after construing the contract sued on.

Hill et al. (Cal.), IV, 430.

See ACCORD AND SATISFACTION; ADMIRALTY, 15, 16; ASSIGNMENT, 1; ASSUMPSIT, 1; ATTORNEYS, 2-5; BANKS, 2; BONDS, 3; COMMON CARRIERS, 9; CONSTITUTIONAL LAW, 11; CORPORATIONS, 28, 53; COUNTY PHYSICIAN, 1; GUARANTY; HUSBAND AND WIFE, 2; INSANE PERSONS; LANDLORD AND TENANT, 11; MASTER AND SERVANT; MARRIED WOMEN, 2-6; PLEADING AND PRACTICE, 38.

CONTRIBUTORY NEGLIGENCE.

See NEGLIGENCE; PLEADING AND PRACTICE, 7.

CONVERSION.

1. CLAIM AND DELIVERY-SHERIFF-CONVERSION-JUDGMENT-UNDERTAKING-AFFIDAVIT—NONSUIT.-Prior to the commencement of the present action, one Hawley commenced an action against the plaintiff herein, and one Fowler, to recover the identical property described in the complaint herein. In that action, upon proper affidavit, undertaking, and order of the attorney for the plaintiff herein, the present defendant, as sheriff, took said property from the defendants on the twelfth day of November, 1881. On the seventeenth day of the same November (the day after the present action was commenced) the plaintiff herein made affidavit for claim and delivery, and executed bond, which affidavit and bond (together with an order of the attorneys for the plaintiff herein) were delivered to an elisor, appointed by the court, by whom the property was taken from the defendant herein, sheriff as aforesaid. Afterwards, on the twenty-second of November, 1881, defendant gave the undertaking provided for in such case by the code, and demanded a return of the property of the elisor, who on the same day delivered the property to the present defendant, who thereupon delivered the property to Hawley, the plaintiff in the action wherein plaintiff and Fowler were defendants. Afterwards, on the twelfth

day of December, 1881, the plaintiff herein filed an answer in the action, wherein he and the said Fowler were defendants, in which he demanded a return of the property therein and herein sued for. That the action of Hawley v. Fowler and Fleming came on to be tried on the twenty-first day of January, 1882, and at the conclusion of the evidence on the part of the plaintiff therein, the court, on motion of defendants, ordered a judgment of nonsuit in that action, on the ground that plaintiff had not made out a case sufficient to go to a jury, and thereupon a judgment was entered in favor of defendants therein for their costs. Held, that the present defendant did not take the property from the plaintiff wrongfully, but as sheriff, under process which made it his duty to take it; that after the return of the property to him, the defendant simply performed his duty in delivering it to Hawley, and that an independent action could not be maintained against him for its possession or value in case delivery could not be had. Fleming v. Wills (Cal.), III, 159.

2. CONVERSION by Sheriff-JuSTIFICATION-PLEADING.—In an action against a sheriff for a conversion, an answer which sets up an attempted justification by virtue of a seizure under a writ of attachment is defective, and should be stricken out, unless · it is alleged that the defendants under the attachment were the owners of the property taken, or had some interest therein. Failure to strike out such portion of the answer, when the plaintiff's title is denied and a general verdict is given in favor of the defendant, will not warrant a reversal, unless it affirmatively appears that such verdict was founded upon the attempted plea of justification. Krewson et al. v. Purdom et al. (Or.), III, 85.

3. IN AN ACTION AGAINST A SHERIFF FOR THE CONVERSION OF PROPERTY by reason of a sale under an execution against a third person, where issue is joined as to the ownership of such property at the time of sale, a finding that the plaintiff had sold the property to the execution debtor, and from the date of such purchase until the taking by the sheriff the same has remained in the debtor's possession "by virtue of such purchase," responds to the issue of ownership. Hardwick v. Tyrrel (Cal.), I, 345. 4. WHERE GOODS ARE SHIPPED TO A CONSIGNEE IN PURSUANCE OF AN AGREEMENT BETWEEN HIM AND THE SHIPPER that the same are to be sold, and the proceeds applied to the payment of prior advances made by the former to the latter, the title to the goods and the right of possession thereof vest in the consignee upon delivery to the carrier; and an action to recover for a wrongful attachment of such goods while in the hands of the carrier should be brought by the consignee, and not by the consignor. Wetzel v. Power (Mont.), I. 791.

5. ACTION FOR THE CONVERSION OF PERSONAL PROPERTY IS NOT BARRED by the statute of limitations when the evidence fails to show when such statute commenced to run. Whitcomb v. McClintock (Cal.), I, 876.

6. CONVERSION OF HORSE-STATUTE OF LIMITATIONS.-Where a horse is wrongfully converted from its owner and afterwards sold to a bona fide purchaser, who uses it in an open and notorious manner, without attempting to conceal it, the statute of limitations commences to run in favor of such purchaser and against the owner from the time of the purchase, and not from the time when the owner discovers the whereabouts of the horse. Dee v. Hyland et al. (Utah), II, 469.

See ATTACHMENT, 24; HUSBAND AND WIFE, 3; PARTNERSHIP, 14.

1. PRINTED COPY OF TITLE OF BOOK, ETC.-The "printed" copy of the title of a book or other article, required by section 4956 of the revised statutes, to be delivered or mailed to the librarian of congress, may be "printed" with a pen as well as type, with or without the aid of tracing-paper. Chapman v. Ferry (U. S. Cir. Ct., Or.), I, 105.

2. DEPOSIT OF COPIES OF WORK WITH LIBRARIAN.-The copies of a copyright work required by section 4959 of the revised statutes to be deposited with the librarian of congress within ten days after publication may be so deposited after the printing of the work, and before its formal publication. Id. ·

3. COPYRIGHT OF MAP, INFRINGEMENT OF.-It is difficult to say, in some cases, what constitutes an infringement of the copyright of a map, but where the subsequent

map appears to have been substantially copied from the prior one, without alteration or revision, except in scale and color, there is clearly an infringement which authorizes a court of equity to enjoin the sale of such infringing map and to require the publisher to account for the profits arising from the sale thereof. Id.

CORPORATIONS.

1. NATURE, ORGANIZATION, AND RESIDENCE OF.

2. POWERS AND LIABILITIES OF.

3. POWERS AND LIABILITIES OF OFFICERS.

4. STOCK AND STOCKHOLDERS.

5. FORFEITURE OF CORPORATE RIGHTS.

6. ACTIONS BY AND AGAINST.

7. MUNICIPAL CORPORATIONS.

1. NATURE, ORGANIZATION, AND RESIDENCE of.

1. CERTIFICATE OF INCORPORATION-ATTACK ON.-The corporate existence and validity of the acts of a de facto corporation, whose user is established, can not be attacked collaterally upon the ground that its certificate of incorporation does not contain certain specifications which it was required by statute to contain. City of Denver v. Mullin (Col.), II, 852.

"of

2. RAILROAD, WHAT IS-UNION DEPOT.-A corporation organized for the purpose locating, building, owning, and maintaining à union depot for railroads in the city of Denver, and for the location, building, owning, and maintaining of as many lines of railroad from said depot to the exterior boundaries of said city as may be necessary for the accommodation and use of the different railroad companies making said city a point of delivery for freight and passengers," is not an ordinary railroad company within the meaning of the general statutes. People ex rel. Bernard et al. v. Cheeseman et al. (Col.), II, 870.

3. CREATION OF PRIVATE CORPORATION UNDER GENERAL LAW.-A substantial compliance with the provisions of the general law is an essential prerequisite to the creation of a private corporation, and a failure to comply therewith in any material particular is ground for the impeachment of corporate existence in an appropriate proceeding prosecuted by the proper authority. Id.

4. THE SAME STATEMENT OF TERM OF CORPORATE EXISTENCE.-The statement in the articles of incorporation of a private corporation that the same is to exist for fifty years, is not fatal to the creation of the corporation, although the general law under which it was organized limits the existence of such corporation to twenty years. Id.

5. CERTIFICATE OF ACKNOWLEDGMENT OF INCORPORATION.-Failure of the officer who took the acknowledgment of the articles of incorporation of a company to state in his certificate thereof that the individuals who acknowledged the same were personally known to him, or proven to him to be the persons who executed the same, does not vitiate such certificate. Id.

6. RESIDENCE OF CORPORATION.-Neither the principal place of business of a corporation, nor the place in which its officers reside, is necessarily the place of residence of the corporation. California Southern R. R. Co. v. Southern Pacific R. R. Co. (Cal.), III, 301, 302.

7. THE ADOPTION OF CERTAIN RULES OF BUSINESS BY A CHINESE COMPANY may be inferred from the fact that such rules were printed in a book kept by the company's. agent, and were hung in the company's house. Chong Yow v. Hop Chong (Or.), III, 329.

2. POWER AND LIABILITIES OF.

8. A CORPORATION HAS NO POWERS except such as are specially granted, and those that are necessary to carry the same into effect. Salmon River Mining and Smelting Co. v. Cunn (Idaho), III, 70.

9. A CORPORATION ORGANIZED FOR THE PURPOSE OF MINING, SMELTING, and Refin ING ORES, and for dealing in mining property, can not become the assignee for a chose in action growing out of the breach of a contract for building a bridge. Id. 10. A CORPORATION CAN NOT APPOINT AN AGENT, nor can it become a cestui que trust, until it has a legal existence. Kelly v. Ruble (Or.), III, 737.

11.

CONVEYANCE-CONSIDERATION-CORPORATION-ULTRA VIRES.-A conveyance by a corporation, in consideration that its grantee would prevent the recovery of or protect it against any personal judgment in an action brought to recover on its contract

of guaranty is valid, although such contract of guaranty was ultra vires. Mound City Land and Water Ass'n v. Slauson et al. (Cal.), III, 372.

12. CORPORATIONS-LIABILITY OF FOR TORTIOUS ACTS OF SERVANTS.-Corporations are liable for the acts of their agents and employés in the same manner and to the same extent as private persons. Accordingly the employés of a railroad corporation who are engaged in service at its stations or on its trains, are presumed to be authorized by it to do such service, and to perform the acts usually incident to their position; and the corporation is liable for their tortious acts which are performed in the course of such service. Denver S. P. and P. R. R. Co. v. Conway (Col.), IV, 672. 13. THE SAME-KNOWLEDGE OF SERVANT Knowledge of CORPORATION.-Knowledge acquired by agents of corporations in the discharge of official duties, of facts material to the transactions in which they are engaged, or coming within their respective departments, is the knowledge of the corporation. Id.

14. IN AN ACTION AGAINST A CORPORATION FOUNDED ON THE UNLAWFUL OR TORTIOUS ACTS OF ITS AGENTS or servants, the fact whether the acts complained of were done by such agents on their own account exclusively, or on behalf of the corpora tion, and within the scope of their employment, need not ordinarily be established by the plaintiff by proof of what occurred at some meeting of the directors of the corporation, but by proof of what the agents and servants had done, and of the attending circumstances indicating the purpose of their acts and the object to be attained thereby; and if the corporation accepted such acts and used the fruits thereof, proof thereof might be given to establish the corporate liability. Denver & Rio Grande Railway Co. v. Harris (N. M.), I, 826.

15. CORPORATIONS ARE LIABLE FOR EVERY WRONG, TRESPASS, AND TORT COMMITTED BY THEIR AGENTS and employees within the scope of their employment, to the same extent as individuals under like circumstances. The doctrine of ultra vires, as formerly understood, does not have any application to such cases. Id.

16. A RAILROAD CORPORATION IS LIABLE FOR THE ACTS OF VIOLENCE OR THE TORTS OF AN ARMED BODY of men, formed of its servants and employees, in taking forcible possession of another railroad by its authority. Such acts of its agents, as well as their declarations in respect thereto, are admissible in evidence, as tending to prove an authorization by the corporation; and if the latter accepted and received into its possession, and assumed control of the railroad so seized, and operated the same, such facts would be strong circumstantial evidence that the agents, in taking such possession, were acting within the scope of their employment, and under the direction of their principal. Id.

3. POWERS AND LIABILITIES OF OFFICERS.

17. PRESIDENT OF A CORPORATION IS AUTHORIZED TO DONATE LAND to a county, to be used for public purposes, by virtue of a resolution of the board of trustees, empowering him to deed and convey to purchasers such land, at his discretion. State v. Glenn (Nev.), I, 50.

18. CORPORATION-UNAUTHORIZED DEED BY PRESIDENT-SEAL.-The president of a corporation has no power, as such, without express authorization from the directors, to purchase or sell real property in the name of the corporation. An instrument executed by him for such purpose, in the name of the corporation, and under its common seal, without the authorization of the directors, may be shown to be void. Bliss v. Kaweah Canal and Irrigation Co. (Cal.), III, 571.

19. THE SAME ESTOPPEL-CONTRACT.-A corporation is not estopped from denying the validity of an unauthorized contract made by its president, where it has never availed itself of the benefits of such contract. Id.

140.

20. SETTLEMENT OF BANK DEFALCATION-AUTHORITY OF BANK OFFICERS AND DIRECTORS.-The settlement of a defalcation to a bank, and the acceptance of a deed of real estate in satisfaction and release thereof, are not transactions which fall within the ordinary powers of a corporation, which may be exercised by its agents, or persons who are held out to the public as such. Power to do such acts must be conferred by the board of directors. Bank of Healdsburg v. Bailhace (Cal.), III, 2L NOTES OF CORPORATION, POWER OF DIRECTORS TO AUTHORIZE.-The board of directors of a corporation has power to appoint two of its members a committee for the purpose of making and delivering the notes of the corporation to such stockholders as have debts against the company. If such committee, in executing the trust imposed upon them, exceed their authority, the corporation is not bound by their unauthorized acts. Leavitt v. Oxford etc. Mining Company (Utah), II, 462.

22. MEETING OF DIRECTORS, NOTICE OF-PRESUMPTION.-In the absence of any law on the subject, a meeting of the directors of a corporation is presumed to have been held after due and sufficient notice therecf to all the directors, unless the contrary affirmatively appears. Id. 23. WHAT CONSTITUTES A QUORUM.-At common law the major part of a board of directors constitutes a quorum, a majority of which may decide any question upon which they have power to act. Id.

24. NOTE GIVEN TO DIRECTOR, VALIDITY OF.-A promissory note of a corporation given to one of its directors, in pursuance of the unanimous vote at a meeting of the directors, is not invalid because such director was present and voted for the same, if without counting his vote the same was authorized by a majority of a quorum of the directors. Id.

25. NOTES OF CORPORATION-ITems Included in—Statute of LIMITATIONS.—A resolution of a board of directors empowering its committee "to make and deliver to the several stockholders who have loaned money to this company, and for the liabilities of this company, the company's notes for such loans and liabilities," does not authorize the committee to include, in a note so given, money paid by a stockholder, prior to the corporation of the company, for the purpose of developing property which afterwards is conveyed to the corporation, and for which he receives certain shares of stock; nor money paid by the stockholder, in pursuance of a resolution of the company calling for a voluntary assessment for the purpose of developing the company's property. Such resolution does not prohibit the giving of a note for an indebtedness barred by the statute of limitations. Id.

26. CONTRACT BETWEEN A DIRECTOR AND THE CORPORATION-LOAN ON EXCESSIVE INTEREST.—A director of a corporation can not contract with his co-directors that, in consideration of a sum of money advanced by him, he should receive the company's notes for a much larger amount, bearing an excessive rate of interest, although by oral contemporaneous agreement it was provided that of the excess beyond the amount loaned, the corporation should be required to pay only the sum which the lender might pay for taxes upon the property, with interest thereon. The corporation may satisfy such notes by paying the amount actually loaned, with interest thereon at the ordinary rates. Sutter Street R. Co. v. Baum et al. (Cal.), IV, 291.

4. STOCK AND STOCKHOLDERS.

27. CORPORATE STOCK-TRANSFER OF-PARTIES TO ACTION.-In an action to have the plaintiff declared the owner of certain shares of stock, and to have the same transferred to him on the books of the company, the corporation is a proper party defendant, together with a purchaser of such stock, with notice of the plaintiff's equities. Johnson v. Kirby et al. (Cal.), III, 482.

28. STOCK

ASSESSMENT-CONTRACT-JUSTICE'S COURT.-A shareholder's liability for the amount of his unpaid assessment on the corporate stock is founded on contract. A justice's court has jurisdiction of an action to enforce such liability. Alpers v. Superior Court (Cal.), III, 526.

29. ASSESSMENT TO PAY DEBT NOT DUE-FRAUD.-Levying an assessment to pay a debt which the corporation did not owe, and selling stock for such purpose, especially when it does not appear that the money so obtained was used for such purpose, is not per se a fraud on the stockholder. Johnson v. Kirby (Cal.), III, 482. 30. BONA FIDE PURCHASER FROM A THIEF OF CERTIFICATES OF STOCK, standing on the books of the company in the name of one person, although owned by another, acquires no title as against the real owner, notwithstanding such certificates were regularly indorsed by the person in whose name they stood, if they were stolen without the fault or negligence of the owner. Barstow v. Savage Mining Co. (Cal.), I, 116.

31. CERTIFICATE OF STOCK IN AN INCORPORATED COMPANY is not a negotiable instrument according to the definition of the civil code. Id.

32. BONA FIDE PURCHASER OF CERTIFICATES OF STOCK FROM ONE who has not the title and has no authority to sell, who relies upon the negligence of the owner for his protection, must show that such negligence was the proximate cause of his deceit. Id.

33. ONE WHO PURCHASES STOCK FOR ANOTHER WITH MONEY ADVANCED BY HIMSELF, taking the title thereto in his own name, has a special property in the stock so purchased, and may hold the same as security for such advances; nor is he compelled to obey an order to sell, given him by the party for whom such purchases were made, which would necessarily result in a loss to himself. Jones v. Gallagher (Utah), I, 307.

DIGEST I-IV. 4