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them (certificates] at the house with her. Two or three days subsequent to that she sent for me and wanted me to take these certificates and pass book and keep them for her, subject to her order—call. She said if she did not get well, and anything happened to her, to notify the people to whom these certificates had been assigned and send for them and deliver them to them. She said she would use more or less of it, and what was left at the time of her death was to be given to the people mentioned by her. pursuance of that, I presume I took the certificates. I took certificate No. 463 which has been read in evidence. After this occurrence I had occasion to visit Mrs. Lee again, She sent for me, because she said she needed some money and wanted to surrender one of those certificates of stock she held. I took the certificate No. 480 for one share out with me.” After this he went out to her house with said certificates as she desired to get money on them. He continues: “After the (ancellation of the last certificate, on the 28th day of February, 1903, the remainder of the certificates were handed back to me. Mrs. Lee told me to take and keep them the same as I had done before to keep them for her. There were 19 certificates of this stock, and all issued in the name of Deborah H. Lee. She afterwards, but on the same day, gave me a list in writing of the persons to whom she wanted the stock assigned, and the assignments were made on the back of the certificates."

It thus clearly appears that Deborah H. Lee did not and never intended to part with control of her title to said stock while she lived. On March 12, 1903, she died without having revoked said assignments, or any of them. The certificates were then in the safe in the possession of Noble, who afterwards delivered certificate No. 465 to Gennis H. Learned, she being the one named therein as assignee. The finding is warranted by the

(4 Cal. App. 225) PEOPLE v. McMAHILL. (Cr. 54.) (Court of Appeal, First District. California. Aug. 15, 1906. Rehearing Denied by


Under Pen. Code, $$ 950–952, requiring an indictment to be direct and certain, and to contain such a statement of the facts that a person of common understanding may know what is intended, an indictment charging that an agent and servant did "willfully, unlawfully, and fraudulently," "appropriate to his own use certain money of his employer does not charge an embezzlement under section 504, which requires the appropriation to be to a "use or purpose not in the due and lawful execution of his trust."

[Ed. Note.For cases in point, see vol. 18, Cent. Dig. Embezzlement, 88 51, 52.]

Appeal from Superior Court, Santa Clara County; J. R. Welch, Judge.

I. B, McMahill was convicted of embezzlement, and appeals. Reversed, with directions.

C. F. Hanlon, G. W. Waldorf, E. Coolidge, and W. A. Bowden, for appellant. U. S. Webb, Atty. Gen., for the People.

COOPER, J. The information charged as follows: "The said defendant, on or about the 25th day of April, A. D. 1905, at the county and state aforesaid, did willfully, unlawfully, and fraudulently, and while said defendant was the secretary, agent, and servant of the San José Chamber of Commerce, an association, appropriate to his own use the sum of $901.67 in lawful money of the United States, the property of said San José Chamber of Commerce, which money was on said date in the control and care, and had come into the control and care of said defendant solely by virtue of his said employment as such secretary, agent, and servant.” To this information the defendant interposed a demurrer upon the grounds that it does not substantially conform to the requirements of sections 950,


. Noble v. Garden, 146 Cal. 225, 79951, and 952 of the Penal Code, and that the

Pac. 883. This, then, disposes of the issue that Noble held the certificate as trustee, against the contention of appellant. A similar case to the one before us, and involving the same question as to delivery and title of others of these identical certificates of stock, was well considered and decided in Noble v. Garden, 146 Cal. 223, 79 Pac. 883. The court there held under the same state of facts that Deborah H. Lee retained control and dominion of these certificates; and that the title did not rest in the parties to whom the assignments were made because she expressly stated it should remain in deceased. Upon the authority of Noble v. Garden, supra, the judgment of the lower court must be upheld.

Judgment is affirmed.

facts offense. The demurrer was overruled, and

, defendant entered his plea of not guilty. After trial he was convicted and sentenced to a term of two years in the state prison. This appeal is from the judgment and order denying defendant's motion for a new trial.

The important and controlling question in the case is as to whether or not the demurrer should have been sustained. It is conceded that the district attorney in the information intended to charge the crime of embezzlement under section 501 of the Penal Code, which, so far as material here, is as follows: "Every

* clerk,

servant, or agent of any association

who fraudulently appropriates to any use or purpose not in the due and lawful execution of bis trust, any property which he has in his possession or under his control by virtue of his trust *

is guilty of embezzle

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ment.” The gist of the offense under the formation was held sufficient upon the ground statute is the appropriation to a use or pur- that “contrary to his trust" was the equiva. pose not in the due and lawful execution of lent of "not in the due and lawful execution the trust. The information must charge the of his trust." In People v. Shearer, 143 Cal. offense in ordinary language, so that a per- 66, 76 Pac. 813, it was held that the charge son of common understanding may know by that defendant fraudulently appropriated the reading it what is intended, and the facts sum of $105, the property of Sonoma county, stated in the information must necessarily which had come under his control by virtue charge a crime. If the facts stated may be of his trust as county physician was insuffitrue, under certain circumstances, and yet cient, because the term "county physician" not constitute a crime the information will did not show that defendant held any trust be held insufficient. The information in this relation to the county. It is there said: case, when divested of the adverbs "unlaw- "Embezzlement is purely a statutory offense. fully, feloniously, and fraudulently” simply | Under the provisions of our statute it is esstates the fact that defendant appropriated sential to the commission thereof that there to his own use $901.67, the property of the should be a fraudulent appropriation of propSan Francisco Chamber of Commerce, which

erty to some use or purpose not in the due had come into his control and care by virtue and lawful execution of his trust by one in. of his employment as such secretary, agent, to whose possession it has come by reason and servant. The conditions of the trust of some relation of trust or confidence menare not stated, nor is there any attempt to tioned in the statute, and existing between state them. The object and purpose for him and another, and it is therefore necessawhich the money came into defendant's pos- ry that an indictment or information for em. session is not stated. No attempt is made bezzlement should allege the trust relation, to state that defendant appropriated the mon- in order that it may be determined thereey for a purpose not in the due and lawful

from whether there has been any such violaexecution of the trust. It may, for aught

tion of a trust or confidence reposed in the that appears in the information, have come defendant." The rule is that it must clearly into his control for his own use. There are appear from the facts alleged that a crime many ways in which an agent might lawful- has been committed. People v. Terrill, 127 ly come into control of the money of his Cal. 99. 59 Pac. 836. principal for his own use. We must pre- The judgment and order are reversed, and sume that defendant is not guilty of any the court below directed to make an order crime, and that he came into the control of sustaining the demurrer to the information. the money for his own uses and purposes, and not for uses and purposes which may have We concur: HARRISON, P. J.; HALL, J. existed in the imagination of the pleader. If the money was given to him for his salary, it was for his own uses and purposes. If

(4 Cal. App. 184) it came into his control to reimburse him for

GUTHRIE v. SUPREME TENT KNIGHTS moneys laid out and expended for his prin

OF THE MACCABLES OF TIIE cipal, it was for his own use. While it is

WORLD. (Civ. 284.) ordinarily sufficient to charge a crime sub

(Court of Appeal, Second District, California. stantially in the language of the statute de

July 31, 19906. Rehearing Denied by fining it, yet the information cannot be aided

Supreme Court Sept. 28, 1906.) ' by inference or presumption. We cannot 1. INSURANCE-POWERS OF MUTUAL BENEFIT presume that the use of money which had INSURANCE ASSOCIATION – CONTRACT_CONcome into the control of defendant was "not


A certificate of insurance provided for one in the due and lawful execution of his trust."

assessment on the membership not exceeding In all the cases which we have examined $2,000 as a benefit to his daughter on satisunder the section the informations which

factory proof of his death, and, in case of total

or permanent disability “or on attaining the age have been held valid allege that the money

of 70 years," he would be entitled to receive was appropriated to a use not in the due one-half of the endowment as provided by the and lawful execution of the trust, or words laws of the order. Held, that such contract

should be construed to entitle the insured to of similar import. In People v. Gale, 77 Cal.

one-half of the endowment in case of permanent 120, 19 Pac. 231, the indictment alleged that

disability, of which the attaining the age of 70 “defendant did then and there, as such ad- years was to be conclusive proof, and, as so conministrator, fraudulently appropriate to his

strued, the contract was within the charter powown use and purpose the sum of $94, which

ers of the society, which was authorized to make

payment of monthly and weekly sums in case said money then and there belonged to the of disability, etc. estate of the said Warren Polley, deceased." 2. SAME - BY-LAWS -- CHANGE-RETROACTIVE The ruling of the court below sustaining a

OPERATION demurrer to the indictment was upheld. In

The art under which a mutual benefit in

surance society was organized provided that the People v. Ward, 134 Cal. 301, 66 Pac. 372, trustees should adopt by-laws, but that no bywhere the words used were that defendant laws adopted, affecting the rights and benefits did “feloniously convert, embezzle, and ap

belonging to or to be derived by the members

of such corporation, should be changed by the propriate to his own use, contrary to his said

trustees. Held, that by-laws adopted by trustrust as such officer as aforesaid,” the in

tees which materially changed the benefits to be derived under contracts written by the associa- act, or from intemperance or any immoral tion would be construed not to apply to con- or unlawful conduct on his part, or from tracts made prior to their adoption.

the violation of the laws of the country, and [Ed. Note. -For cases in point, see vol. 28, provided further, that the member shall have Cent. Dig. Insurance, $ 1855.]

paid all dues and assessments from date of Appeal from Superior Court, Los Angeles

initiation to date of disability, or upon reachCounty ; Charles Monroe, Judge.

ing 70 years of age. From the date of such Action by Francis B. Guthrie against the

payment such member shall only pay pro Supreme Tent Knights of the Maccabees of

rata or one-half as much at each assessment the World. From a judgment for plaintiff,

as prior thereto. On the death of such memand from an order denying a new trial, de

ber his heirs or assigns shall receive his fendant appeals. Affirmed.

endowment, less the amount which may have Frank James and D. D. Aitken (De Vere been paid as provided above." Hall, of counsel), for appellant. E. M. Gutlı- Plaintiff, during the year 1885, when this rie, for respondent.

act and the by-laws and regulations above

mentioned were all in force, became a member ALLEN, J. Action upon a written agree- of the defendant, and there was issued to ment. Judgment for plaintiff and an order him a certificate of membership, which cerdenying a new trial, from which judgment | tified that he was a member and a beneficiary and order defendant appeals.

in good standing, and that, in accordance The defendant is a corporation created un- with and under the provisions of the laws der a legislative act of the state of Michigan, governing the order, he is entitled to receive which authorized the incorporation of as- one assessment on the membership, not exsociations for certain purposes, among which ceeding in amount the sum of $2,000, as a were that of “* * * securing a certain benefit to his daughter, upon satisfactory sum of money weekly or monthly to any proof of his death and a surrender of the member disabled by sickness or other dis- certificate, provided he shall have, in every ability." The act required that persons de- particular, complied with all the rules and siring to form such associations must file in regulations of the order. In case of total or certain public offices articles of association, permanent disability, or upon attaining the which, among other things, should state the age of 70 years, he will be entitled to receive business of the corporation and the terms and one-half of the said endowment, as provided conditions of membership. The act further in the laws of the order. Under this agreeprovided that the trustees of such association ment plaintiff continued the payment of all named in the articles should adopt by-laws, dues and performed all obligations devolving but that no by-laws adopted affecting the upon him thereunder; and in the year 1905, rights and benefits belonging to or to be de- when he arrived at the age of 70 years, rived by the members of such corporation claimed payment of one-half of the endowshould be changed by such trustees. Pur- ment; and upon defendant's refusal to pay, suant to this act, certain persons, in the instituted this action. It appears from the year 1885, filed with the proper officers the record that after this certificate was issued, articles of association described, defining without the consent or agreement upon plainthe purposes of the association, among other tiff's part, the by-law hereinbefore referred to things, to be to give material aid to its was changed in material respects, notably members; to establish a benefit fund or that instead of paying $2,000 when permanent funds from which, on satisfactory evidence disability should ensue, the defendant would of the death or disability of a member who pay 10 per cent. of the endowment fund anhas complied with all its lawful requirements, nually during the existence of such permathe sum of $2,000, in case of death, shall be nent disability. It is found by the court paid to his family, orphans, dependents, or that plaintiff and defendant both believed. legal heirs, as such member may direct; when the certificate was issued, that the corand, in the case of total or permanent dis- poration possessed the power to issue the ability, such sum as may be designated in same in the manner of its issuance, and to the endowment laws of such corporation. enter into the contract thereby made, and One of these endowment laws provides: “A that plaintiff, without knowledge upon his total and permanent disability to perform part that want of authority so to do was or direct any kind of labor or business, or claimed by defendant, paid and defendant upon reaching the age of 70 years, shall received, during the 20 years of his mementitle a member holding a certificate of bership, all dues and assessments leviedl endowment, so disabled or aged, to the pay- or assessed against him. The court further ment of one-half of the endowment to which finds that plaintiff had no actual notice of he would be entitled at death, provided, how- any changes in the by-laws affecting his ever, that in case of a total and permanent | rights. The trial court also finds that the disability, satisfactory proofs must be sub- defendant corporation, from its organization mitted to the supreme medical examiner and up until 1899, provided for the payment of board of trustees before payment is made, benefits to its members when they reached showing that such disability is permanent; the age of 70 years; and further, that asand that it did not arise from his voluntary sessments had been made and funds existed out of which plaintiff's claim was payable, , ther provisions in relation to permanent disand that he was entitled under his contract ability benefits, whether the same were from to receive $1,000, with interest from Feb- disease, accident, or old age, and that disruary 15, 1905, and the sum of $6, assess- ability claimed before such age must be esments overpaid; for which it rendered judg- tablished by proof; and we think that a ment.

reasonable and proper construction of this Defendant's principal contention upon this contract, one which will give it effect and appeal is that the contract sued upon was carry out the intention of the parties, is to ultra vires and void; that the stipulation say that, under this contract, total and per therein that payment should be made at the į manent disability was the event which maage of 70 years was not authorized by the tured the claim, and that the 70 years menact under which the association was formed; I tioned therein was but a term employed as and in support of this contention cites as au- establishing by agreement an age when such thority certain decisions of the Supreme condition was conclusively presumed to exist. Court of Michigan, construing a similar act, This construction was not permissible in the in which it was held that a contract to pay cases before the Supreme Court of Michigan, a stipulated sum in a hundred months was and in many other cases referred to by counultra vires and void ; and cites other authori- sel for appellant; for in those cases the sum ties in support of the proposition that if the was payable within less than 9 years from contract is ultra vires the corporation is not the issuance of the certificate, regardless of estopped to deny its character. This last age or the physical condition of the member, proposition is a much controverted one, and and it was apparent that the intent was to the converse thereof has been held by our make the expiration of a fixed time the event own Supreme Court in numerous cases. We which should mature the claim, and not disare of opinion, however, that this question is: ability, total or partial. Entertaining these not necessarily involved upon this appeal ; views, we are led to the conclusion that the for it is not apparent from the language of act authorizing the payment of a sum when the agreement that want of authority existed. disability should arise, even though it lim

Section 1643 of the Civil Code of this state / ited such payment to monthly or weekly provides: "A contract must receive such sums, is sufficient warrant, coupled with the an interpretation as will make it lawful, other provisions of the act relative to the operative, definite, reasonable, and capable articles of association, and the by-laws authorof being carried into effect, if it can be done | ized, to render this contract within the pow. without violating the intention of the par- ers of the corporation. Certain it is that ties”; and section 3541, Civil Code, provides the power to contract with reference to a that "an interpretation which gives effect is payment upon disability is given, and none preferred to one which makes void.” The of the authorities cited go to the extent of contract involved in this case is susceptible determining that where the general power to of two constructions: One that a payment do the act is given, a corporation is not esis absolutely due when the age of 70 years topped when the manner of the exercise of is attained; the other, that payment is due the power only is involved. when perinanent and total disability ensues, Appellant next contends that the subseand that the attainment of 70 years is an quent changes in the endowment laws had evidential fact of such permanent and total the effect to alter and vary this contract. ilisability. Our general government, in its We find nothing in the contract or record administration of the pension laws of this which would indicate an intention upon the country, has, through its duly authorized | part of either of the contracting parties to officials, promulgated a rule based upon a reserve, or to permit to be reserved, to the statement that old age is an infirmity, the association the right to alter or modify the average nature and extent of which the

extent of which the written agreement originally executed. Nor Pension Bureau has established with rea- do we find anything in this subsequent sonable certainty, that in the adjudication change of the by-laws which of necessity of pension claims which are payable on ac- changed previously existing contracts; in count of disability, “it shall be taken and fact, the statute recognizes the trustees as considered as an evidential fact, if the con- alone having power to enact by-laws and by trary does not appear, and if all other legal | its previous by-laws such trustees are prohibrequirements are properly met, that when a ited from making any change affecting the claimant has passed the age of

* *

rights or benefits of members. A reading seventy years" he is entitled to the full of these modifications of the by-laws would pension for total disability. That this con- indicate that they only purport to be, and tract was made with reference to the intent we think their only legal effect could be, to that 70 years should be a conclusive eviden- affect the relations of those contracting after tial fact of permanent disability is obvious their enactment. There is nothing suggestfrom the by-law of the corporation, adopted ed in the nature of the amendments or moda fortnight before the statute was amended, ifications of these by-laws which necessarily in which are found provisions with regard to alters the terms of the written agreement, old-age disability as distinguished from dis- and it is not claimed that any executed paability arising from other causes, and fur- rol agreement had such effect. The author

ities cited in the appellant's brief, namely, Supreme Council v. M'Alearney, 133 Fed. 72, 67 C. C. A. 546, and Clymer v. Supreme Council (C. C.) 138 Fed. 470, to the effect that one contracting party must be presumed to have consented to the abrogation of the provisions in the certificate providing for the payment of a fixed sum, if no action was taken by him after notice of such change, even if ac. cepted as correct expositions of the law, are not controlled in a case where the plaintiff had no knowledge that the defendant intended to dispute the validity or amount on maturity of his claim. In so far as any constructive notice is concerned, the notice in the statute that no by-law could be changed affecting plaintiff's rights should certainly operate as an assurance to him that changes made in such by-laws were not intended to affect his vested rights as to benefits due him from membership.

We find no error in the record, and the judgment and order are affirmed.

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(4 Cal. App. 228)

BECKETT V. MORSE et al. (Civ. 193.) (Court of Appeal, First District. California. Aug. 15, 1906. Rehearing Denied Sept.



A resolution ordering a public work was passed by a city council December 16th. On the same day it directed its clerk to post for five days a notice thereof, with specifications, inviting sealed proposals, and to cause such notice to be published for five days. The notice was posted and published. On or before December 30th following several sealed proposals were presented, and the city council in open session examined the proposals and by resolution awarded the contract to one of the bidders. Il cld, that the council complied with Street Improvement Act, 8 5 (St. 1891, p. 199), providing that, before the awarding of any contract by a city council for doing any work, it shall cause notice, with specifications, to be posted for five days and to be published in a newspaper published in the city, etc., and the fact that the council did not fix a day or hour prior to which, or at which, it would receive or open proposals for doing the work, nor direct its clerk to fix such day or hour, did not invalidate the assessment.

Ed. Note.-For cases in point, see rol. 36, Cent. Dig. Municipal Corporations, $S 857, 860.] 2. SAME--ACTION FOR STREET ASSESSMENTEVIDENCE-BURDEN OF PROOF.

Where, in an action on a street assessment, the court found that the averments in the complaint of the making and recording of the assessment, warrant, and diagram, with the affidavit of demand and nonpayment, were true, plaintiff was prima facie entitled to recover, and defendant had the burden of showing a defect in the prior proceedings sufficient to overcome the prima facie case.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, $ 1282.) 3. PLEADING-CONCLUSION OF LAW.

An allegation, in an action on a street assessment, that the superintendent of streets did

not make the assessment in the manner prescribed by law, without setting forth the particulars in which the assessment was defective. is but an averment of a legal conclusion, and not of a fact.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, $ 19.] 4. MUNICIPAL CORPORATIONS - ACTION ON STREET ASSESSMENT-DEFENSES.

An averment that a lot was not assessed for a public improvement for any one of the separate sums stated in the complaint in an action on a street assessment is insufficient as a defense to an action for the aggregate of the suns, where such separate sums could have been properly assessed against the lot for its proportion of the costs of the entire work. 5. SAME-ASSESSMENT-VALIDITY-REVIEW.

Street Improvement Act, subd. 7 (St. 1891, p. 202), provides that, where a subdivision street terminates in another street, the expense of the work done on one-half of the width of the subdivision street shall be assessed on the lots fronting on such termination. A city ordered the construction of a sewer in an avenue. A lot against which an assessment was made was described as situated on the easterly side of the avenue. The lot was assessed to pay for frontage work and for termination work on the easterly half of the avenue opposite the termination of certain streets. Irld, that the assessment was in accordance with the statute; but, if the facts were otherwise, or if by reason of the position of the streets the assessment for termination work was not authorized, the remedy was by appeal to the city council. 6. SAME.

Where a lot fronting on an improvement was assessed for more than its lawful proportion of the cost, whether by reason of an erroneous computation or an improper distribution of the cost on the lands assessable, error was waived by a failure to appeal to the city council, and in the absence of such appeal the objection could not be made for the first time in an action to enforce the assessment.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, $ 1269.] 7. SAME.

The validity of a street assessment is not impaired by the fact that the proportion of the cost for which a lot is chargeable is subdivided! into several amounts; the cost of the entire work being apportioned in separate amounts to the several portions of the territory chargeable therewith in accordance with their relative position to the work, and the several amounts so apportioned being assessed against the lots within the respective territories chargeable therewithi.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, $ 1109.]

Appeal from Superior Court, Alameda County; F. B. Ogden, Judge.

Action by John P. Beckett against Harry N. Morse and others. From a judgment for defendants, plaintiff appeals. Reversed.

Fitzgerald & Abbott, for appellant. R. M. F. Soto, for respondents.

HARRISON, P. J, Action upon a street assessment in the city of Oakland. Judyment was rendered in favor of the defendants, and the plaintiff has appealed therefrom upon the judgment roll without any bill of exceptions. The complaint is in the ordinary form and sets forth all the facts necessary to entitle the plaintiff to recover judgment. The court found that, with the exception of cer

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