(Brenneke v. Smallman, 2 Cal. App. 306, [83 Pac. 302]; Melone v. Ruffino, 129 Cal. 514, [79 Am. St. Rep. 127, 62 Pac. 93].) On the contrary, that the debt was not paid and the note discharged as an existing obligation either by the payment of money or by virtue of the execution of any instrument in writing or agreement of the parties is fully shown by the evidence. It also appears, at least sufficiently to support the finding of the court, that the time for the payment of the obligation was not extended. To show abundant support for the conclusion of the trial court respondent calls attention to various portions of the transcript wherein are revealed important facts that justify the inference that the original obligation remained in full force and effect. A brief résumé of these facts may not be amiss: Plaintiff testified positively that no part of the note had been paid; in defendant Carpenter's original proposition, the words "cancel my note and mortgage" were included, but they were omitted from said exhibit "A" with Carpenter's knowledge and consent; in said exhibit "A" signed by him on December 20, 1909, occur these words, "the mortgage and interest and notes heretofore given T. H. Minor amounting at this date to about fifteen thousand dollars will be paid, and T. H. Minor to have besides the payment of the mortgage notes and interest, eleven thousand four hundred dollars, out of the first payment made on sale, bond or lease"; the words, "and additional accrued interest on existing mortgage" were inserted in supplemental agreement of December 21, 1909, with full knowledge of the matter; the power of attorney prepared by defendant Carpenter and dated September 1, 1911, contains this significant phrase, "Cash and additional accrued interest at eight per cent per annum upon the existing $12,462.15 mortgage upon said eight hundred acres of land from December 20, 1909, to the date of sale or bonding"; Carpenter admitted that he included $12,462.15 at eight per cent interest in his statement in the amount specified in the bond, the sum for which this mortgage herein was given; in the deed to plaintiff dated November 14, 1910, defendant incorporated this provision, "subject, however, to $12,462.15 at eight per cent per annum, mortgage dated December 13, 1907, and executed by Samuel Carpenter in favor of T. H. Minor," and he had in his possession this deed containing this exception from November 14, 1910, until September 1, 1911; at no

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time did defendant ask to have the mortgage canceled. Other significant circumstances are pointed out, but the foregoing are sufficient to show how substantial is the support for the finding of the court that the note was not paid nor the time extended,

Indeed, the language of the instruments themselves, upon which Carpenter relies as operating to discharge the indebtedness or to extend the time for its payment, affords no ground for his contention. There is nothing of the kind provided therein. No expression is used from which the inference would follow that the parties thereby intended or contemplated that a novation should take place or that the obligation arising from the note was extinguished, extended, or modified in any respect. The terms of said instruments, to the contrary, expressly recognize the validity of said note as an existing obligation. In addition, as to the extension of time it may be said that no definite time is stated or intimated to which the payment is to be deferred, and, of course, it will not be disputed that where a party depends upon an extension of time to meet his obligation, he must show an agreement for a time certain. (Prather v. Young, 67 Ind. 480; Brenneke v. Smallman, 2 Cal. App. 306, [83 Pac. 302].)

It is apparent that only by virtue of parol evidence could it be held that the instruments referred to should be deemed as constituting a novation or modification of the terms of said note. Appellant, indeed, claims that parol evidence was admissible to show such intention of the parties, and he insists that the court erred in sustaining the objection to certain questions having that object in view. The inquiry assumed various forms, but the following will illustrate the situation: "What was your agreement with Col. Minor with reference to the mortgage and notes here in controversy as connected with or modified by the exhibit 'A' contract which is now in evidence?" "What was your understanding at that time, what was your belief rather, as to the understanding Col. Minor had as to whether that mortgage and note would be in existence, or this would take its place?" "You may state whether or not at the time of the execution of exhibit 'A' from Mr. Minor's conversation with you at the time you believed, and now believe, that he understood at that time that by the execution of exhibit 'A' the debt represented by the

note and the mortgage in this case was to be extended until you bonded, sold, or leased the Gold Mountain mine and received the money therefor?" In considering the ruling of the court upon these and other similar questions, we can hardly lay out of view the utterly inconsistent attitude assumed by appellant. Necessarily these instruments could not constitute at once a novation, an extinguishment of the obligation on the note, and an extension of the time for its payment. It is difficult to understand how such could have been the intention of the parties, or of either of them. And it seems rather strange that an attempt was made to show these contradictory purposes. If it could be said that the parties had in view such condition when they executed said instruments, then it would follow that the instruments themselves by reason of this uncertainty and inconsistency could not be effectual for any purpose.

Moreover, it is clear from what has already been said that it was not a proper case for the consideration of such parol evidence. The written instruments disclosed the contrary of such intention, and the claim of appellant brings him within the inhibition of the rule as to varying the terms of a written instrument. The question is more fully discussed in Piper v. Kellerman, 32 Čal. App. 128, [162 Pac. 423], to which we refer for additional consideration of the matter. Again, it is manifest that some of said questions were objectionable as calling for the opinion of the witness as to the understanding of the parties, and, moreover, he did testify quite fully on the cross-examination as to what was the intention and consideration in and for the execution of said instruments. He even went so far as to give his impression of the effect of said transactions, and to state that he would not have executed the instrument of December 20th and 21st if it had not provided for the payment of the mortgage out of the sale or bonding or leasing of the property.

Of course, it is possible that it was intended that said written instruments should operate as claimed by appellant, but if so, the pleadings should have been framed so as to call for a suitable reformation of said instruments. Or if appellant believed that he was defrauded, he should have tendered the issue by appropriate averment. As the matter is presented

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to us, there is no ground for interfering with the conclusion of the trial court.

The appeal as to Pentuff is dismissed. The judgment and order as to Carpenter are affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 1535. Third Appellate District.-November 5, 1917.] COLUSA & HAMILTON RAILROAD COMPANY (a CorAppellant, v. CHARLES H. GLENN,

poration),
Respondent.

EMINENT DOMAIN-DECISION IN ANOTHER ACTION-EFFECT UPON APPEAL-A decision of the supreme court in an action in eminent domain is binding on the district court of appeal in the case of an appeal from the judgment and order denying a new trial in another action to condemn other land owned by a different defendant, where the physical conditions surrounding the lands involved in both actions were practically the same, and the testimony, the rulings, and the instructions substantially the same, and all the important points urged for a reversal of the judgment and order made and determined in such decision.

APPEAL from a judgment of the Superior Court of Glenn County, and from an order denying a new trial. Wm. M. Finch, Judge.

The facts are stated in the opinion of the court.

Frank Freeman, and George Freeman, for Appellant.

Charles L. Donohoe, and W. T. Belieu, Jr., for Respondent.

THE COURT.-This action is in eminent domain, and was initiated by the plaintiff for the purpose of condemning and thereby acquiring for its purposes a strip of land belonging to the defendant and comprising, as the jury found, 12.18

acres.

The jury assessed the damages for the land thus to be taken at the sum of $2,801.40 and for the land not taken, because of the depreciation in the value thereof by reason of

its severance from the land proposed to be taken and the resulting damage, at the sum of $14,130. Upon the verdict so returned the court made and caused to be entered judgment, from which and from the order denying the plaintiff a new trial the latter appeals.

The tract of land from which the strip is sought to be taken in the present case adjoins the tract of land of which a portion, involving approximately the area sought to be taken in this case, was condemned in the case of the Colusa & Hamilton R. R. Co. v. Leonard, 176 Cal. 109, [167 Pac. 878]. Upon an examination of the records of the present and the said Leonard case, we have found that the physical conditions surrounding the two tracts of land are substantially if not precisely the same; that is to say, that the two tracts are similarly situated with respect to the conditions that the evidence showed would exist as the result of the building and the running of the railroad tracks of the plaintiff, according to the plan as shown, through and over the strips to be taken, and that each tract would be equally subject to the increased danger, which it was shown would result to the untaken lands, from the flood waters of the Sacramento River, in case the levees protecting the lands against said stream were to give way from any of the causes suggested; that, therefore, the elements contributing to and forming the bases determinative of the depreciation of the value of the lands not taken by reason of the severance therefrom of the strips taken and of the use to which the latter were to be put in conformity with the design disclosed by the evidence were practically and substantially the same in both cases.

The Leonard case was the first of the two cases to be tried in the court below, the trial of the instant case following closely on the termination of the trial of the former. The testimony in both cases was practically the same, the rulings upon the important points the same, and the instructions, so far as the principles of law therein stated were concerned, were in all substantial particulars the same.

All the important points urged herein for a reversal of the judgment and the order appealed from were made and presented in the said case of Colusa & Hamilton R. R. Co. v. Leonard, supra. That case was elaborately and ably presented to the supreme court on behalf of the appellant in a large number of voluminous briefs, of which some were pre