well to the criticism made on account of the fact that the statement attached to the published delinquent list was not sworn to; that is to say, there was no affidavit attached showing its verification.

The point made by respondent as to the form of the tax-collector's deed has been met and disposed of by the decision in Bank of Lemoore v. Fulgham, 151 Cal. 234.

Respondent presents no authority in support of its proposition that the sale was invalid by reason of the fact that the delinquent list did not comply with the form required by section 3764, Political Code. This question, we think, has been disposed of in the case of Carter v. Osborn, 150 Cal. 620.

As a summary, therefore, we are of opinion that, for the reason that the property was not assessed by a description sufficient for identification, the assessment and all proceedings thereunder were void, and that plaintiff was not shown to have any title or interest in the property, and the finding of the trial court in that regard must be sustained.

Judgment affirmed.

We concur:
SHAW, J.

TAGGART, J.

ALLEN, P. J.

Civil No. 623. Second Appellate District. July 21, 1909. H. E. HALL, Plaintiff and Appellant, v. CORNELIUS BARTLETT and ELIZABETH BARTLETT, Defendants and Respondents.

ACTION IN EJECTMENT-SHERIFF'S DEED-INCONSISTENT DESCRIPTIONS-EVIDENCE-DEED INADMISSIBLE.—Where the plaintiff in an action in ejectment to recover possession of a city lot offers in evidence a sheriff's deed to him as purchaser at a foreclosure sale, and the description in such deed is so uncertain that it does not describe any property, such deed is properly excluded.

ID.-DEED DESCRIPTION-PATENT AMBIGUITIES EVIDENCE.-Where a description on its face discloses a patent ambiguity, that is, where it contains two inconsistent descriptions, either of which would identify a different piece of property from that described by the other, as a general rule, extrinsic evidence is not adraissible to remove the ambiguity and the instrument is said to be inoperative and void.

Appeal from the Superior Court of Los Angeles County-Walter Bordwell, Judge.

Action in ejectment. Judgment for defendants, and plaintiff appeals from the judgment on a bill of exceptions.

The complaint alleges that plaintiff is seized in fee and entitled to the possession of all that certain lot and parcel of land situate in the city of Los Angeles, county of Los Angeles, state of California, and described as follows, to-wit: "Lot ten (10) of Block 'V' of the Mott Tract, as per Map of said tract recorded in book 14, page 7, miscellaneous records of said county, excepting therefrom any portion thereof included in Figueroa street, formerly Pearl street,

as indicated by a plat of block 'V' of the said Mott tract, recorded in book 53, page 21, miscellaneous records of said Los Angeles county."

The map of Mott Tract above referred to as recorded in book 14, p. 7, miscellaneous records, shows lot 10 of block V of that tract to be a lot fronting 60 feet on Grasshopper (now Figueroa) street, with a depth of 165 feet, and being located sixty feet from First street; lot 9, of the same dimensions, lying between it and First street; and the other plat of block V of said tract (referred to in the complaint as recorded in book 53, page 21) does not identify either of said lots 9 or 10, but shows the two lots nearest the corner of Pearl (now Figueroa) and First streets, fronting on Pearl street, to be each 60 feet wide and 163.28 feet deep. Both these plats were introduced in evidence by plaintiff, who in further support of his title introduced the judgment-roll in the case entitled Peckham v. Fox in the superior court of Los Angeles county, the judgment in which, together with the execution and return thereon of the sheriff, are brought up in the transcript. Judgment was rendered in favor of plaintiff for ninety dollars and costs for verifying and recording claim of lien, and for attorney's fees. A sale in such action was ordered of certain real property, described as: "Being part of lot ten of block 'V' of the Mott Tract, the same being the lot on the corner of First street on the east side of Figueroa street, being sixty-five feet front by one hundred and sixty-five feet deep, and the two-story frame house situated thereon." The judgment directs the docketing of a deficiency judgment against the defendant; and the return on the execution shows the property to have been sold to plaintiff here for the sum of five dollars.

Two deeds made by the sheriff to plaintiff as the purchaser at said sale were offered in evidence (one being made to correct an error in the execution and acknowledgment of the other), to the introduction of both of which deeds the defendant objected on the general grounds and for the further reason that the description in these deeds varied from the description in the complaint; and for the further reason that the description in the deeds is so uncertain that it does not describe any property, and that the property cannot be identified thereby.

The description in both deeds is the same as that above quoted from the judgment, and the plaintiff in aid thereof introduced the two plats above referred to; testimony of the deputy recorder that there were no other plats or maps of the Mott Tract recorded in the office of the county recorder of Los Angeles county; testimony of the city clerk that the name of Grasshopper street had been changed to Pearl and this in turn to Figueroa; and his own testimony that there was no two-story frame house on the lot at the corner of First and Figueroa, and that there was such a house on lot 10 on block V of the Mott Tract, that is, on the lot next to the corner. The trial court sustained the objection to the deeds and gave judgment in favor of defendants. It is this ruling of the court which is assigned as error.

Where a description on its face discloses a patent ambiguity,

that is, where it contains two inconsistent descriptions, either of which would identify a different piece of property from that described by the other, as a general rule extrinsic evidence is not admissible to remove the ambiguity and the instrument is said to be inoperative and void. (Brandon v. Leddy, 67 Cal. 43; Cadwallader V. Nash, 73 Cal. 43, pp. 48, 49.) If the rule were otherwise, by the aid of extrinsic evidence, the same instrument could be made to operate in different ways according to the weight of the oral evidence, and the description would not depend at all upon the contents of the writing, but upon the force of the testimony, and thus (Am. & the latter would in effect entirely supplant the former. If the extrinsic evidence here Eng. Ency. of Law, vol. 2, p. 289.) introduced be considered as properly admitted, we are unable to see that it materially affects the question of law before the trial court when ruling upon the admissibility of these deeds.

If the lot intended to be conveyed were on the corner of First and Figueroa streets it would not be a part of lot ten of block V of the Mott Tract, as shown on the plat of that tract which was introduced by plaintiff. If its dimensions were 65x165 feet, it could not be a part (?) of either of these lots. If considered as the lot on the corner, five feet of the 65 feet width would encroach upon lot ten, and consist of a part of it, but this would not include "the two-story frame house situated thereon", which plaintiff's testimony locates 60 feet from First street. In reply to appellant's contention that this clause should be looked to in identifying the lot, on the ground that the claim of lien is against the house thereon, it may be said that the deeds do not recite a sale under foreclosure of a lien, but designate the lot as the "mortgaged premises", following the suggestion arising from the form of the judgment.

We do not see how we could adopt appellant's contention that the words, "the same being the lot on the corner of First street on the east side of Figueroa street", should be disregarded, any more than we could eliminate the words, "being part of lot ten of block V of the Mott tract". The description does not refer to a map, and if it did, there is no evidence "that the parties acted with reference to the map", so that if it were proper to try out the description in the deeds by the rules for construing descriptions of land con tained in section 2077 (Code Civ. Proc.), the provisions of subdivision 2 of that section make the monuments named in the description (the streets) of paramount importance. It would be a strange application of the rules of construction to eliminate from consideration that portion of the description to which the statute says the greatest importance is to be attached and apply a portion declared to be of minor importance. It was to avoid just such attempts at construction that the rule as to patent ambiguities was framed. We are of the opinion that the trial court properly applied it in its ruling here.

Judgment affirmed.

We concur:

ALLEN, P. J.

SHAW, J.

TAGGART, J.

Civil No. 679. Second Appellate District. July 21, 1909. WILLIAM G. JACKSON, Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY (a Corporation), SOUTHERN PACIFIC RAILROAD COMPANY (a Corporation), JOHN DOE and RICHARD ROE, Defendants and Appellants.

ACTION FOR DAMAGES-PERSONAL INJURIES-INJURY TO ENGINEER OF PUMPING PLANT WHILE AVOIDING CAVE IN WELL-CONTRIBUTORY NEGLIGENCE LEAVING TRAP DOOR OPEN-NONSUIT PROPERLY DENIED.— In an action for damages for injuries sustained by the engineer of a pumping plant, while attempting to avoid the falling of dirt and rock upon him, while ascending from the well connected with such plant, a motion for a nonsuit on the ground that the evidence showed the plaintiff was guilty of contributory negligence in leaving the trap door open in the top of the well, is properly denied, in absence of anything in the plaintiff's case showing the rock fell through such door.

ID.-ID.-ID.-ID.-STARTING OF RELIEF PUMP-FAILURE TO STOP REGULAR PUMP-ABSENCE OF NEGLIGENCE.-A motion for a nonsuit in such a case, based upon the contributory negligence of the plaintiff in failing to stop the regular pump before attempting to start the relief pump (which was the purpose of going down the well), is properly denied, in the absence of any evidence showing that the falling of the rock was due to the vibration of the pump.

ID. CONTRIBUTORY NEGLIGENCE INTOXICATION.-An instruction whose effect is to make the matter of intoxication alone sufficient to support the defense of contributory negligence, without regard to its degree or character, is improper.

ID. INSTRUCTION-RENDITION OF VERDICT.-A general instruction to render a verdict is wrong only when it omits facts necessary to the conclusion.

ID.-EVIDENCE-DIAGRAMS-LOCATION OF OBJECT BY-APPEALFAILURE TO INCLUDE IN RECORD-PRESUMPTION.-Evidence of location of an object dependent upon testimony which locates it by means of a diagram which is not brought up in the record must be assumed to have been most favorable to the view that supports the finding or verdict.

Appeal from the Superior Court of Kern County-J. W. Mahon, Judge.

For Appellants-P. F. Dunne, C. W. Durbrow, Fred E. Borton. For Respondent-J. W. Wiley, E. L. Foster.

This is an action brought to recover damages for personal injuries by an employee. Verdict and judgment were for plaintiff. and defendant appeals from the judgment and an order denying its motion for a new trial.

Plaintiff was employed by defendant to run a pumping plant consisting of a boiler and two steam pumps, one of the latter being supposed to pump continuously and the other used as a relief. Plaintiff's duties during his shift were to fire the boiler, look after the pumps, keep one of them going continuously and the reservoir full of water. The boiler was 50 to 75 feet from the well and the pumps were 30 to 40 feet down in the well and reached by ladders, the relief pump being some six feet below the regular one. The well was eight or ten feet square, timbered with 6x6 or 8x6 timbers placed about six feet apart, and lagging or planks set in behind the timbers to keep the rock and earth from falling in, and was covered on top by a platform in which was a manhole 2x3 feet,

covered with a trap, through which descent was made into the well. The well was located between the railroad tracks and the foot of the mountain, and the latter had been excavated to secure a place for the well, so that there was a perpendicular wall of loose rock and earth 18 or 20 feet high at the rear of the well, while in front it was nearly level with the track. A tunnel had been started into the mountain near one side of the well and the formation around the mouth of the latter on that side was broken and loose. In some places the lagging in the well was close together and in some places apart, and, in one place, it lacked ten or twelve inches of reaching to the platform which covered the well. Through this defective place in the timber rocks and earth had fallen to such an extent that complaint was made to the defendant that the well was unsafe.

In response to this complaint the resident engineer of defendant passing through inquired of plaintiff and the pumper who was on the other shift what was the matter, and was told by the latter that the foot of the tunnel was caving into the well, that it was unsafe to go in, that other men refused to go down, and that the timber was broken beneath the flooring from the weight of the dirt, and that it was all the time caving in and was practically unsafe. The engineer ordered the dirt cleared off, said very little about the broken timbers beneath, but declined to go down into the well to investigate; said he couldn't stop at that time, but told plaintiff he would send somebody back to fix it. Three or four days later plaintiff was ordered to start the relief pump, went down into the well to do so, but being unable to get it to run, was coming up the ladder when some dirt and rock fell in and knocked his torch and oil can from his hand. In attempting to get under the foot-way to protect himself from the falling matter he slipped and fell, the thumb of his right hand being caught in the pump, which was running, and so injured that it had to be amputated.

Plaintiff rests his case upon the rule declared in Anderson v. Seropian, 147 Cal. 201, p. 208, and claims that he continued in his employment after knowledge of the unsafe condition of the well only because of the promise of defendant that this condition would be remedied, and the expectation that this would be done soon.

In support of its appeal appellant urges error of the trial court in denying defendant's motion for a nonsuit, in giving a certain instruction requested by plaintiff and in modifying another offered by defendant; also, that the evidence is insufficient to support the verdict and that the verdict is against law.

It is contended that the motion for a nonsuit should have been granted because the evidence shows that plaintiff was guilty of contributory negligence, first, in leaving the trap door open in the top of the well, and, second, by going down to the lower pump while the upper one was running. The plaintiff testified that he didn't know where the rock came from that fell upon him when he was hurt, but there is no evidence that any matter ever fell through the trap door or could have fallen from that place. There was a diagram of the well introduced in evidence which is not before us, and which, it is true, was a part of defendant's case, but which, if brought up, would be proper for us to consider in deter