
    Appellate Department, Superior Court, Alameda
    [Civ. A. No. 236.
    Apr. 21, 1958.]
    PAUL ZIEGELMAIER et al., Appellants, v. RUDOLPH RASMUSSEN et al., Respondents.
    Marks & Pedersen for Appellants.
    Young & Young for Respondents.
   LEDWICH, J.

This case was submitted to the trial court and is submitted to this court pursuant to a stipulated set of facts under Code of Civil Procedure, section 1138, and an agreement of sale between appellants and respondents, which is Exhibit A to the complaint, dated June 18, 1956, wherein appellants are the sellers and respondents are the buyers. The property covered by the agreement is a summer resort in Plumas County.

The escrow was closed August 15, 1956, but respondents, pursuant to the agreement, entered into possession of the property on June 18, 1956, and received all of the rents and profits therefrom from June 18, 1956. The sole question presented to this court is whether or not appellants are entitled to interest on the unpaid balance of the purchase price, namely, $123,000, from June 18, 1956, or only from August 15, 1956. No date for the commencement of interest was specified in the agreement.

The trial court held that interest ran only from August 15, 1956, the date of closing the escrow. In so holding we think the trial court was in error.

The agreement was not silent on interest. Paragraph E, page five of the agreement, provides for interest as follows:

. “É. The sellers agree to deliver their property free and clear of all encumbrances. Sellers agree to carry a note and first deed of trust secured by property at Bucks Lake. Above described in the amount of $123,000.00, payable as follows (interest at 5% per annum)—$12,000.00 on or before September 15, 1956, the balance of approximately $111,000.00 to be paid in 15 equal installments of $7,400.00 each.”

Paragraph E of the agreement definitely shows the intent of the parties that the unpaid balance of the purchase price was tó draw interest at 5 per cent per annum. There is nothing in the agreement that interest was to commence only at the time the escrow was closed, which could have been a matter of several months. In the meantime the buyers would be enjoying the rents and profits of the sellers’ property and the sellers receiving no return whatever upon the balance of purchase price unpaid.

The total purchase price was $155,000 for the real and personal property, and approximately $10,000 for the inventory of stock in trade. The unpaid balance of the purchase price, $123,000, was in excess of 70 per cent of the total purchase price. It would be most inequitable for the buyer to receive all the rents and profits from the property purchased, while the seller received no income on over 70 per cent of the consideration that he was to receive, until some indefinite date in the future when the escrow might be closed. The language of Paragraph E, which provides for interest on the unpaid purchase price, should not be so construed in the absence of anything to that effect in the agreement.

The trial court, in its “Memorandum Opinion” cites cases to the effect that where no interest is reserved none can be claimed, and cites the following authorities: Upton v. Gould, 64 Cal.App.2d 814, 817 [149 P.2d 731]; Gibbs v. Mendoza, 103 Cal.App. 183, 186 [284 P. 250]; 75 A.L.R. 316; 25 A.L.R.2d 953; 55 Am.Jur. 773.

The holding of these authorities may be summarized by the following statement from Upton v. Gould, page 817: “It is the generally well settled rule that where a contract makes no provision for the payment of interest, no interest can be charged or collected prior to the time that payment falls due. ’ ’

After citing several California cases, the court continues: “The contract here is silent on the subject of interest.” (Italics ours.)

It cannot be said, in view of Paragraph E of the agreement, that this contract makes “no provision for” or “is silent on the subject of interest.” It clearly shows an intent to pay interest on the unpaid purchase price but simply fails to specifically state the time at which interest is to commence. Under such circumstances the rule in equity is that the purchaser in possession and enjoying the benefits thereof shall pay interest on the unpaid purchase price from the date of his possession. The law implies such an agreement in the absence of anything in the contract to indicate a contrary intention. The well considered case of Volk v. Atlantic A. & R. Co., 142 N.J.Eq. 67 [59 A.2d 387], declares the rule we deem applicable to this case as follows:

“. . . Where the purchaser is in possession, equity will in general require him to pay interest on the unpaid purchase-money. The parties may, indeed, control the matter by their stipulations, but so strongly does equity hold to the principle that a purchaser in possession shall pay interest, that it will look at any agreement which appears to prevent the application of the rule, in the light of the general principle, and since it interposes only according to conscience, will refuse to compel execution of it where it grossly violates the rule.”

And on page 392:

“And so, in the absence of some incompatible equity, it seems to be the predominant weight of judicial opinion in courts of equitable jurisdiction that in the ordinary case to accord the purchaser the beneficial enjoyment of the possession of the property without liability for any interest on the retained purchase money is inequitable.”

The above rule is the generally prevailing rule. See 25 American Law Reports 2d 953 and 75 American Law Reports 316, at page 343.

The judgment is reversed, and the municipal court is directed to enter judgment in favor of plaintiffs and appellants and against defendants and respondents for interest on the sum of $123,000 from June 18,1956, to August 15, 1956.

Wagler, P. J., concurred.

HOYT, J.

I dissent. Paragraph E of the contract clearly means that sellers agree to accept a note secured by a first deed of trust on the property at Bucks Lake, that this note will be in the amount of $123,000, bear interest at 5 per cent per annum, and be payable in installments as stated in Paragraph E. In my opinion this paragraph not only does not show an intent to pay interest prior to the date of the note, but in fact negatives any such intent.

Upton v. Gould, 64 Cal.App.2d 814 [149 P.2d 731], establishes the principle that where no interest is reserved, none can be claimed. Under the contract in question no interest was reserved for the period of time prior to the execution of the note. It would therefore seem to follow under this case that the courts of this state should not require the payment of interest in situations where it is not reserved in the agreement.

Volk v. Atlantic A. & R. Co., 142 N.J.Eq. 67 [59 A.2d 387], holds that equity in ordering specific performance of an agreement of purchase and sale which does not provide that the purchaser in possession shall pay interest on the unpaid purchase money will, “in the absence of some incompatible equity” require the purchaser to pay interest on the retained purchase money. In the instant case, under the facts before us, in my opinion it cannot be said that there is no incompatible equity.

INDEX [References are to pages where headnotes appear. Figures in brackets refer to headnote numbers.] ADMINISTRATIVE LAW Judicial Review—Exhaustion of Administrative Remedies, 413 [1] Hearing, 728 [4] Mandamus—Hearing, 823 [1] ADOPTION Collateral Attack, 216 [5] Effect, 216 [4] Validity, 216 [6] AFFIDAVITS Information and Belief, 842 [10] AGENCY Agent as Fiduciary, 83 [5] Liabilities of Agents—Secret Profits, 83 [4] AGRICULTURE State Associations, 93 [1], 94 [3-5] APPEAL Abandonment, 630 [5] Briefs—Failure to File, Effect of Respondent’s, 67 [2] Reply Briefs—Raising New Questions, 372 [1] Decisions Appealable—Effect of New Trial Granted, 543 [1] Finality—Collateral Matters, Determination of, 549 [1] Judgment, Final, 543 [3] Orders on Demurrer, 773 [18] Orders on Motion to Strike, 456 [1] Dismissal-—Effect, 544 [4] Errors—Invited or Committed by Appellant, 257 [4] Harmless and Reversible Error Conduct of Counsel, 266 [6] Insurance Against Loss, Reference to, 692 [10], 747 [7] Instructions, 301 [1] Conflicting Instructions, 340 [2, 3] Law of Case, 389 [1] Notice of Appeal, 650 [10] Objections, 372 [2] Conduct of Counsel, 747 [6] Necessity, 828 [2, 3] Theory of Case—Adherence, 828 [1] Presumptions—Orders on Motion for New Trial, 99 [1] (885 )

886 Index—159 C.A.2d APPEAL—Continued Questions of Law and Pact—Authority and Power of Court, 265 [4], 326 [1, 2], 357 [2], 550 [6], 602[11] Consideration of Evidence, 83 [6], 265 [3], 721 [4], 729 [5] Documentary Evidence, 549 [5] Inferences, Evidence Subject to Different, 326 [3] Law Question, When Arises, 357 .[1] Presumptive Evidence, 772 [10] Substantial Evidence Rule, 721 [3] Sufficiency of Evidence, 519 [1] Reversal—Partial Reversal, 330 [2] Review—Nature of Decisions Prom Which Appeal Is Taken, 544 [5] Right of Review—Waiver of Right, 330 [3,4] Scope and Extent—Demurrer, 307 [1] Taking Appeal—Piling, 414 [5] ARBITRATION Award—Appeal, 4 [1] Review, 4 [2], 5 [4, 7] Scope, 5 [6] Vacation, 5 [5] Waiver, 4 [3] ARREST Without Warrant—Reasonable Cause, 429 [1], 586 [2, 3], 587 [4-8], 588 [9], 595 [3,4] When Made, 586 [1], 595 [2] ASSISTANCE, WRIT OP Persons Entitled, 661 [2] ATTORNEYS Relation to Client—Establishment of Relationship, 549 [2] AUTOMOBILES Appeal Harmless and Reversible Error Evidence, 326 [4] Admissibility, 534 [1] Instructions, 105 [2], 301 [2], 304 [2], 340 [1], 341 [4], 691 [5] Care of Operator, 692 [7] Intersections—Assumption as to Conduct of Others, 232 [4] Evidence, 374 [12] Instructions—Care of Operator, 690 [1, 2], 692 [6] Contributory Negligence, 373 [10] Presumptions, 691 [3, 4], 692 [9] Res Ipsa Loquitur, 372 [4] Violation of Ordinance, 180 [1]

Index—159 C.A.2d 887 AUTOMOBILES—Continued Insurance—Claims Covered, 875 [6] Delivery of Contract, 876 [7] Indemnity Insurance, 172 [1-3], 173 [4] Bisks—“Collision or Upset,” 875 [4, 5] Offenses Driving Car Without Owner’s Consent—Evidence, 808 [3] Questions of Fact, 808 [1] Province of Court and Jury, 104 [1] Vehicles Being Towed, 374 [11] Proximate Cause—Violation of Regulations, 535 [4, 5] BRIDGES Instructions—Care of Vehicle Driver, 479 [4] Province of Court and Jury—Contributory Negligence, 478 [3] ■ BROKERS Compensation—Evidence, 77 [1] Findings, 77 [2] BURGLARY Appeal—Harmless Error, 493 [2] Direction of Verdict, 56 [11] Evidence, 54 [1], 206 [1] First Degree Burglary, 54 [3] CANCELLATION Evidence, 798 [1, 2] Reliance, 798 [3] Relief Granted—Interest, 349 [4] CARRIERS Passengers—Damages, 265 [5] Degree of Care Required, 265 [2] Evidence, 265 [1], 760 [5] Res Ipsa Loquitur, 760 [3] CONSTITUTIONAL LAW Constitutionality of Statutes—Partial Unconstitutionality, 501 [7, 8] Presumptions, 501 [3, 4] Fundamental Rights—Imprisonment for Debt, Freedom From, 869 [1] CONTEMPT Appeal, 67 [1] CONTINUANCE Absence of Witness, 534 [3] Discretion of Court—Abuse, 799 [4]

888 Index-—-159 C.A.2d CONTRACTS Actions—Appeal—Conclusiveness of Findings, 281 [1] Evidence, 281 [2] Execution—Place, 369 [1] Interpretation, 185 [2] Questions of Fact, 252 [3] Questions of Law, 252 [2] Surrounding Circumstances, 252 [5] Legality—Effect of Illegality, 349 [2, 3] Restraint of Trade—Territorial Extent, 811 [1] Offer—Mode of Acceptance, 281 [3] Withdrawal or Rejection, 281 [4] CONTRIBUTION J oint Tortfeasors, 84 [8] CORPORATIONS Capital Stock—Value, 738 [3] Officers—Liability—Statute of Limitations, 439 [4] Stockholders—Suing on Behalf of Corporation, 433 [4-6], 439 [3] COURTS Decisions—Obiter Dicta, 856 [22] Opinions—Construction, 856 [19, 20] Precedents, 856 [21, 23, 24] Superior Courts—Jurisdiction—Equity Cases, 773 [16] COVENANTS Conditions—Construction and Effect, 163 [1, 2] CRIMINAL LAW Advised Verdict—When Acquittal May Be Advised, 675 [11] Appeal—Decisions Appealable—Probation, Order Granting, 848 [1] Harmless and Reversible Error Evidence, 55 [8] Other Crimes, 209 [3] Miscarriage of Justice, 209 [7] Misconduct of Prosecuting Attorney, 671 [1] Opening Statement, 673 [2-4], 674 [5, 6] Questions, Improper, 674 [8] Revocation of Probation, 578 [6] Invited Error—Evidence, 808 [2] Objections, 430 [3] Evidence, 23 [6] Misconduct of Counsel, 753 [7] Presumptions—Evidence, 39 [7] Questions of Law and Fact, 31 [3], 39 [6,10], 41 [19], 160 [1, 3], 582 [2] Consideration of Evidence, 31 [1]

Index—159 C.A.2d 889 CRIMINAL LAW—Continued Appeal—Continued Questions of Law and Fact—Continued Identity, 22 [4] Inferences, Conflicting, 31 [2], 39 [8] Inherent Improbability, 22 [2, 3], 160 [4, 5], 582 [4] Reasonable Doubt, 54 [2] Suspicion, 160 [7] Argument of Counsel—Comment on Evidence, 753 [5, 8] Inferences, 753 [8] Retaliation, 849 [7] Scope, 753 [5, 6] Conduct of Counsel—Improper Questions, 493 [4] Opening Statement, 674 [7] Conduct of Judge—Toward Particular Persons, 493 [3] Evidence—Accomplices—Feigned Accomplice, 623 [2, 3] Compelling Production of Evidence, 444 [1], 848 [3, 5] Corpus Delicti, 38 [2] Flight, 445 [6] Other Crimes, 208 [1], 209 [2, 4, 5], 444 [4], 753 [4] Relevancy, 445 [5], 595 [5] Telephone Conversation, 55 [9,10] Former Jeopardy—Identity of Offenses, 54 [4], 754 [11] Indeterminate Sentence—Constitutionality of Law, 445 [7,-8] Inspection of Papers, 848 [4], 849 [6] Instructions—Evidence—Character, 676 [15] New Trial—Newly Discovered Evidence—Character of Evidence, 595 [6] Order of Proof—Corpus Delicti and Admissions, 38 [3, 5] Plea—Guilty, 171 [1] Probation—Discretion of Court, 578 [3] Duration, 579 [7] Review—Presumptions, 578 [4] Revocation, 1 [1, 2], 578 [5], 579 [8] Who May Be Placed on Probation, 578 [2] Province of Court and Jury—Identity, 22 [5] Punishment—Cumulative Sentences, 445 [10], 446 [11] Extent and Duration, 446 [12] Rights of Accused—Confrontation by Witnesses, 752 [1] Counsel, 675 [12] Suspension of Sentence—Authority of Court, 578 [1] DAMAGES Compensatory Damages—Attorneys’ Fees, 145 [12] Excessive Damages—Power of Appellate Court, 197 [6] Exemplary Damages—Province of Court and Jury, 197 [7] Review on Appeal, 197 [8]

890 Index—159 C.A.2d DEATH Actions for Wrongful Death—Instructions—Presumptions, 398 [22] Presumptions, 616 [5] DECEDENTS’ ESTATES Administrators Removal—Discretion of Court, 764 [1] Review, 764 [2] Decree—Construction by Resort to Will, 216 [1] Final Distribution—Conclusiveness of Decree, 635 [1, 2], 636 [6] Decree of Distribution, 636 [4] Effect of Decree—Trusts, 635 [3], 636 [5] Jurisdiction—Controversies With Third Persons, 773 [17] Orders and Decrees—Vacation, 109 [3] Sales—Confirmation—Vacation, 109 [1, 5], 110 [6] DEEDS Delivery—Elements—Intent, 226 [8] Evidence—Delivery, 226 [7], 257 [1] Findings, 258 [6] Interpretation—Reservations, 163 [3,4] Questions of Fact—Delivery, 226 [9] Requisites—Delivery—Intent, 257 [2, 3] DELINQUENT CHILDREN Correction—Proceedings—Appeal, 463 [2, 3] Evidence, 463 [4] Findings, 463 [1] DISMISSAL Nonsuit—Appeal, 664 [1] Denial, 395 [1] Hearing of Motion—Inferences, 705 [1] DIVORCE Appeal—Sufficiency of Evidence, 225 [1] Community Property, Disposition of—Review, 330 [1] Judgment—Collateral Attach, 288 [8,10] Interlocutory Decree, 287 [2] Res Judicata, 288 [4] Permanent Alimony—Appeal, 225 [4] Discretion of Court, 225 [2, 3, 5] Grantability, 288 [9] Support of Children—Amount of Award, 225 [6] EASEMENTS Evidence, 18 [1] Interference With Easement, 18 [2] Servient Estates, Rights of Owners of, 18 [2]

Index—159 C.A.2d 891 ELECTIONS Conduct of Election—Effect of Irregularities, 557 [6] Election Campaigns, 708 [1] EMINENT DOMAIN Judgment—Enforcement of Award, 661 [1] Nature of Bights Acquired, 657 [1] Abandonment and Nonuser—Beversion, 657 [3], 658 [4] Necessity, Considerations in Ascertaining, 657 [2] Pleadings, 456 [4] Bight—Who May Exercise Bight—Individuals, 456 [4] EQUITY Grounds and Subjects of Belief—-Mistake, 13 [1] Laches, 702 [3] ESCBOWS Pleading, 566 [1, 3,4] EVIDENCE Competency—Incompetent Testimony Admitted in Evidence, Effect, 549 [3, 4] Whole, Admissibility of, Where Part is Proved, 534 [2] Extrinsic Evidence—Sales Contracts, 702 [1] Hearsay—Mental Condition, 400 [32, 33] Judicial Notice—Address, 842 [11] Boats, Movement of, 760 [4] Municipal Ordinances, 180 [2] Presumptions—Law of Foreign Country, 841 [1] Nonproduetion of Evidence, 275 [1] EXTOBTION Attempt—Evidence, 54 [1] Bequisites, 55 [6] Elements of Offense, 55 [5] FIXTUBES Evidence, 164 [5] Intent, 164 [6] FOBCIBLE ENTBY Acts Constituting—Violence or Circumstances of Terror, 69 [2] Damages, 70 [5, 6] Defenses—Consent, 70 [3] Prior Possession of Defendant, 70 [4] Evidence-—-Title, 71 [7] Statutory Provisions, 69 [1] FOBGEBY Passing Fictitious Checks—Evidence, 622 [1], 623 [4,5]

892 Index—159 C.A.2d FRAUD Appeal—Sufficiency of Evidence, 196 [4] Concealment—Duty to Disclose Facts, 322 [1] Damages, 197 [9], 522 [2], 737 [2], 738 [4] Measure, 197 [5] Evidence, 522 [1] Constructive Fraud, 737 [1] Knowledge of Falsity—Innocent Representations, 322 [3] Pleading, 439 [1] Amendment, 196 [1] Essential Averments, 196 [3] Statements of Fact and Opinion, 323 [5] Waiver, 196 [2] FRAUDS, STATUTE OF Pleading, 288 [6] FRAUDULENT CONVEYANCES Bulk .Sales Appeal, 815 [2] Conflicting Evidence, 815 [3] Recording and Notice of Intended Sale, 815 [4], 816 [5] Remedies, 815 [1] Rights and Liabilities, 816 [6] Validity and Effect, 816 [7] GAMING Offenses—Bookmaking—Showing Necessary, 31 [5] Evidence—Bookmaking, 31 [4] HOMESTEADS Alienation and Encumbrance, 855 [4] Death or Dissolution of Family, 856 [14,15] Continuance of Exemption, 856 [16] Divorce—Assignment of Homestead, 855 [7, 8] Decree Silent as to Homestead, 855 [11,12] Effect, 855 [9-11], 856 [13] Exemption, 855 [6] Nonresidence or Temporary Absence, 856 [17] Persons Entitled—Joint Tenant or Tenant in Common, 856 [18] Property Subject—Estate in Cotenancy, 854 [1] Title, 854 [2] Remedies—Partition, 854 [3] Termination, 855 [5] HOMICIDE Evidence—Corpus Delicti, 38 [1, 4, 5] Second Degree Murder, 39 [9,11], 40 [15,16] Instructions—Defenses—Excusable Homicide, 40 [18]

Index—159 C.A.2d 893 HOMICIDE—Continued Murder—Malice, 40 [12,13] Manslaughter Distinguished, 49 [13] Second Degree, 40 [14] Province of Court and Jury—Degree of Offense, 40 [17] HOUSES OP CORRECTION Commitment, 464 [5] HUSBAND AND WIPE Descent of Property—Personal Property, 500 [1, 2], 501 [5, 6] Property Character—Determination—Appeal, 772 [9] Evidence, 771 [7] Separate Property, as to, 772 [12,13] Presumptions, 771 [8] Management and Control, 772 [11] Property Settlement Agreements—Construction, 275 [2] Effect—Enforcement, 287 [3] Pleading and Proof, 288 [7] Requisites, 287 [1] Transactions Inter Se Undue Influence, 770 [1] Against Wife—Presumption, 770 [3], 771 [5] Evidence, 771 [6] Presumption, 770 [2], 771 [4] Trusts—Actions, 143 [4], 144 [7, 8], 145 [9], 146 [14] Express Trusts, 143 [1] INDEPENDENT CONTRACTORS Liability of Contractors, 396 [8, 9] Nonsuit, 396 [11] INJUNCTIONS Soliciting Customers of Former Business Association, 811 [2] INSURANCE Actions—Conditions Precedent, 307 [3], 308 [4] Pleading—Demurrer to Complaint, 307 [2] Interpretation of Contract—Against Insurer, 875 [1, 3] Objects, With Reference to, 875 [2] INTOXICATING LIQUORS Licenses—Review of Department’s Decisions, 335 [1] Revocation-—-Review, 413 [2], 414 [3] Sales, 335 [2] To Minors, 336 [5] Suspension—Defenses, 114 [1], 335 [3,4] Transfer, 714 [3], 715 [4] 159 C.A.2d—29

894 Index—159 C.A.2d JUDGES Disqualification, 665 [7] Acting as Attorney, 665 [6] Proceedings, 665 [8] JUDGMENTS Assignment—Evidence, 83 [7] Declaratory Judgments—Pleading, 295 [7, 8] Findings and Conclusions, 637 [8, 9] Form and Requisites—Conformity to Findings, 384 [1, 2] Number in Case, 543 [2] Opening and Vacating—Construction of Statute, 109 [4] Discretion of Court—Review, 109 [2] Procedure to Obtain Relief, 658 [5] Payment—By One of Several Joint Wrongdoers, 84 [9] Res Judicata—Matters Concluded—Unnecessary Findings, 637 [10] Satisfaction Compelling Satisfaction—Affidavits, 83 [2, 3] Motion, 82 [1] KIDNAPING Child Stealing—Evidence, 353 [1] LABOR Injunctive Relief—Jurisdiction of State Courts, 126 [1], 127 [2] Offenses—Refusal to Pay Wages, 870 [3] Wages, 869 [2] LANDLORD AND TENANT Covenant to Repair—Remedies on Breach, 242 [1-3] Leases—Extension, 715 [5] Options to Purchase in Leases—Actions to Enforce, 185 [3] ■ Exercise, 184 [1] Waiver, 185 [4] Use of Premises—Injuries to Persons on Premises, 247 [1] Injuries to Invitees of Lessee, 247 [2, 3] LARCENY Elements of Offense, 55 [7] Evidence, 54 [1] Possession of Stolen Goods, 209 [6] LEWDNESS Appeal—Review of Evidence, 674 [10] Evidence, 673 [1] Corroboration, 674 [9] Instructions, 675 [14], 676 [16,17] New Trial, 675 [13]

Index—159 C.A.2d 895 LIBEL Evidence, 318 [1] Privileged Communications, 318 [2], 319 [3] LICENSES Criminal Liability, 349 [1] Nonpayment as Affecting Contracts, 349 [1] Subjects of License or Tax—Contractors, 468 [3] Plumbers, 469 [4] Validity of Laws—Conflicting Regulations, 468 [1, 2] LIMITATION OP ACTIONS Appeal—Review, 772 [14] Commencement of Period—Accrual of Cause of Action, 714 [2] Estoppel, 308 [7, 8], 309 [9,10] Period of Limitation—Instruments in Writing, 714 [1] Persons Affected, 772 [15] Procedure—Demurrer, 308 [6] LOST INSTRUMENTS Appeal, 472 [3] Evidence, 472 [1] Proof of Loss, 472 [2] MARRIAGE Annulment—Review of Evidence, 136 [1] MECHANICS’ LIENS Bonds, 513 [2] Liabilities of Sureties, 513 [1, 3], 514 [5] Contents of Claim—Kind of Materials, 630 [4] Evidence—Value of Work and Materials, 629 [1] Persons Entitled, 629 [2, 3] MOTIONS Findings, 84 [10] MUNICIPAL CORPORATIONS Contracts—Estoppel, 294 [4] Implied Liability, 294 [4] Mode of Contracting as Measure of Power, 294 [1-3, 5], 295 [6] NAMES Fictitious Names—Persons Affected, 816 [8] Waiver of Noncompliance, 816 [9] NEGLIGENCE Anticipating Negligence of Others, 232 [6] Appeal—Harmless Error—Instructions, 372 [3] Questions of Law and Fact, 721 [1] Assumption of Risk, 400 [30, 31]

896 Index—159 C.A.2d NEGLIGENCE—Continued Care By Employees of Subcontractors, 397 [12] By Persons Dealing With Dangerous Articles, 396 [7] By Persons in Charge of Dangerous Instrumentalities, 397 [14,15], 398 [16] Exercise of Care Excuses for Failure to Exercise Care—Sudden Peril, 616 [6] Knowledge of Danger, 399 [27] Ordinary Care, 395 [5] Proportioned to Danger, 396 [6], 692 [8] Toward Invitees, 396 [10] Contributory Negligence, 399 [28] Evidence, 395 [2, 3] Instructions-—Inevitable or Unavoidable Accident, 304 [1] Last Clear Chance, 616 [3] Knowledge of Danger—Foreseen Consequences, 232 [5] Last Clear Chance, 615 [1] Nonsuit, 395 [4], 397 [13] Pleading—Answer, 478 [1, 2] Presumptions, 399 [23] Proximate Cause, 398 [18], 746 [2, 3] Concurrent Causes, 232 [7], 233 [12] Foreseen Consequences, 398 [17] Intervening Causes, 746 [3] Questions of Law and Fact, 721 [2] Assumption of Bisk, 400 [29] Contributory Negligence, 398 [21], 399 [24-26] Negligence of Defendant, 398 [19, 20] Proximate Cause, 746 [1,4] Bes Ipsa Loquitur, 373 [9], 760 [2] Bes Ipsa Loquitur, 373 [7] Application of Buie, 373 [5] Limitations on Doctrine, 373 [8], 760 [1] NEW TBIAL Insufficiency of Evidence—Conflict of Evidence, 231 [2] Powers and Duties of Court, 231 [1] Beview, 232 [3] Misconduct of Counsel, 616 [9] PABTITION Trial and Judgment—Counsel Fees, 145 [11], 146 [13] PHYSICIANS Licenses Suspension—Evidence, 728 [1], 729 [7] Beview, 729 [6] Unprofessional Conduct, 728 [2, 3]

Index—159 C.A.2d 897 PHYSICIANS—Continued Malpractice—Directed Verdict, 833 [1, 3] Evidence, 664 [2, 3] Nonsuit, 664 [4] Questions for Jury—Res Ipsa Loquitur, 664 [5] Res Ipsa Loquitur, 833 [2] PLEADING Amendment—On Leave of Court, 432 [3], 439 [2], 456 [2] Demurrer to Complaint—Form and Requisites, 308 [5] Insufficiency of Facts, 566 [2] Judgment on Demurrer, 309 [11] Judgment on Pleadings, Motion for, 288 [5] Objections—To Evidence, 432 [1, 2] Striking Pleadings—Motion—Amended Pleading, 457 [7, 8] Subject Matter—Facts Judicially Noticed, 456 [5] POISONS Offenses—False Name and Address in Connection With Prescription of Narcotic, 572 [1-3] Possession of Naroeties, 582 [1, 3], 595 [1] Evidence, 63 [2] Knowledge, 63 [1] Sale of Narcotics—Evidence, 753 [3] Instructions, 754 [9,10] Transportation of Narcotics—Forfeiture of Vehicles, 365 [1] PRISONS Fixing Term of Imprisonment, 445 [9] PROHIBITION Acts Prohibitable, 127 [3] Particular Civil Proceedings—Receivership, 807 [1] PUBLIC UTILITIES AND SERVICES Exclusiveness of Commission’s Jurisdiction, 485 [1,2] RAILROADS Injuries From Operation—Appeal—Harmless Error, 616 [4], 616 [7, 8] Instructions—Last Clear Chance, 615 [2] RAPE Appeal—Review of Prosecutrix’ Testimony, 160 [8] REFERENCE Effect of Order Adopting Report, 609 [10] Effect of Report, 609 [5,9] Modification or Correction of Report, 608 [1] Nature of Reference, 608 [2], 609 [8]

898 Index—159 C.A.2d REFEREN CE—Continued Review of Report, 609 [4] Setting Aside Report, 609 [6, 7] When Authorized, 609 [3] ROBBERY Evidence—Other Offenses, 444 [3] Review, 22 [1] Indictment and Information—Ownership, 444 [2] SALES Conditional Sales—Retaking Possession of Property, 527 [1] Evidence, 702 [2] Extrinsic Evidence, 252 [4] Seller’s Remedies—Action for Price, Appeal, 252 [1] SCHOOLS Buildings and Construction, 456 [3] Districts, 417 [2] Legislative Power and Duty, 417 [1,4], 457 [6] Property, 417 [3] Location of School Site, 417 [5-8] SEARCHES AND SEIZURES Consent, 527 [3], 588 [10-12] Legality, 492 [1] SHERIFFS Deputies—Discharge—Judicial Review, 823 [2] SPECIFIC PERFORMANCE Acts Prerequisite to Suit-—Payment of Purchase Price, 117 [1] Mutuality—Exceptions, 117 [3] STATE OF CALIFORNIA Actions Against State, 93 [1] Tort Liability, 93 [2] STATUTES Construction—Executive or Departmental Construction, 414 [4] - STREETS Definitions—“Roadway,” 180 [3, 4], 181 [5] Injuries Caused by Obstructions—Liability of Abutting Owners, 706 [4] Liability of City, 706 [5] Nonsuit, 705 [3] Proximate Cause, 705 [2] SURETYSHIP Interpretation—Contract and Bond, 514 [4]

Index-—159 C.A.2d 899 TORTS Joint and Several Liability, 233 [8-11] TRADEMARKS AND TRADE NAMES Evidence, 357 [3] TRESPASS Defenses—Consent, 527 [2] Instructions, 527 [1] TRIAL Direction of Verdict—Condition of Evidence, 721 [5] Evidence, Introduction of, 747 [5] Findings—Inconsistency, 258 [5] Instructions—Applicability to Evidence, 301 [1] Invading Province of Jury, 373 [6] TRUST DEEDS Duties of Trustee, 650 [8, 9] Nature, 650 [7] Sale Under Power—Attack—Inadequacy of Price, 650 [5] Notice, 649 [1-3], 650 [6] Recitals in Trustee’s Deed as Evidence, 650 [4] TRUSTS Appointment of Trustee—Beneficiary as Trustee, 144 [5] Right to Act, 144 [6] Control and Management of Trust Property—Rights of Trustees, 145 [10] Payment of Taxes, 637 [11] Express Trusts—Essentials and Requisites, 143 [2] Judgments, 636 [7] VENDOR AND PURCHASER Assignment or Transfer by Purchaser, 13 [2] Bona Fide Purchasers—Notice, 143 [3] Contract—Construction and Operation—Interest, 881 [1] Performance of Contract—Tender or Offer, 117 [2] Fraud—Knowledge or Intent, 322 [4] Nondisclosure and Concealment, 322 [2] Options—Return of Consideration, 820 [1] VENUE Actions ex Contractu, 369 [2, 3], 489 [1], 841 [2] Appeal—Objections—Waiver, 316 [1, 2] Change of Venue Affidavits—Residence, 842 [13] Counteraffidavits or Showing, 842 [9] Pleadings as Determining Right, 842 [8] Presumptions and Burden of Proof, 489 [2] County of Residence, 841 [3], 842 [4-7,12]

900 Index—159 C.A.2d WAIVES, Definitions, 185 [5] Province of Court and Jury, 185 [6, 7] WATEBS County Water Districts Annexation, 556 [3] Eormation, 556 [1] Election, 557 [5] Jurisdiction to Call Eormation Election, 557 [7] Inclusion and Exclusion, 557 [4] Issuance of Bonds, 556 [2] WILLS Conditional Wills, 600 [2, 3], 601 [4, 7-9], 602 [10] Construction—Appeal, 389 [2], 390 [15] Avoidance of Intestacy, 389 [7, 8], 390 [9] Extrinsic Evidence, 216 [3] Intention of Testator, 216 [2], 389 [5], 600 [1], 601 [5] Language, 389 [4] Liberal Construction, 601 [6] Words of Desire or Wish, 389 [3] Designation of Takers, 390 [14] Disinheritance—Intention, 389 [6] Execution—Presumptions, 99 [4] Proof, 99 [5] Failed Gifts—Gifts to Delations of Testator, 686 [1] Probate—Hearing, 99 [2, 3] Vacating or Setting Aside Order, 99 [6] Besiduary Gifts—Construction, 390 [13] Intention, 390 [12] Language of Clause, 390 [10] Position of Clause, 390 [11] Beview—Sufficiency of Evidence, 217 [7] WITNESSES Answers—Besponsiveness, 401 [35] Credibility—Disregarding Part of Testimony of Witness, 160 [2] Province of Court and Jury, 160 [6] Impeachment, 753 [4] Conviction of Crime, 494 [5] Privileged Communications Public Officers—Identity of Informers, 752 [2] Waiver, 429 [2] Questions—Calling for Conclusion, 400 [34] Befreshing Beeolleetion—Inspection and Cross-examination by Adverse Party, 848 [2]  