P. S. McNutt, for Appellant.

A. J. Hill, County Counsel, and David R. Faries, Deputy County Counsel, for Respondents.

WORKS, J., pro tem.-This action was commenced against the respondents, who were members of the board of supervisors of Los Angeles County, to recover against them as individuals for certain alleged omissions on their part to perform duties which the appellant contends were enjoined upon them, as supervisors, by law. The appellant sued as assignor of several other persons. Demurrers to the amended complaint on behalf of each of the respondents were sustained without leave to amend and judgment went accordingly. The appeal is from the judgment.

We learn from the amended complaint that appellant's assignors were appointed by the supervisors to serve as election officers in certain precincts in the city of Glendale, at the general election of November, 1914, that they served as such election officers, the period of service of each, including the time expended in the counting of the ballots cast at the election, being more than four days and nights; that each of the assignors presented his claim against the county at the rate of three dollars for each eight hours of service; that the supervisors allowed each claim to the extent of ten dollars, but rejected each for the excess; that there is due appellant certain specific amounts on the claim of each of his assignors, the amount alleged to be due in each instance being ten dollars less than the amount for which the claim was presented, thus showing the collection and acceptance from the county of the amount allowed each assignor by the supervisors; that all the claims were assigned to appellant before the complaint was filed; that the supervisors did not, before the election, as required by section 1127 of the Political Code, as in force at that time, divide Glendale into voting precincts containing not more than two hundred voters; that in the precincts in which appellant's assignors served as election officers there were registered, at the time of the election, respectively, 1,029, 965, 1,099, and 873 voters, and that the respondents knew the number in each precinct; that the votes actually cast in the same precincts were, respectively, 782, 774, 839, and 715; that, by reason of the failure of the respondents to establish pre

cincts containing less than two hundred voters each, the appellant's assignors were compelled to serve as election officers for the periods of time above mentioned; that by reason of this service "and the consequent loss of sleep and the nervous strain," the plaintiff's assignors "suffered greatly both from mental and bodily fatigue, besides being deprived from pursuing their ordinary calling for a period of four days"; that each of the respondents is indebted to the appellant in the sum of $371.27, that being the total of the amounts previously alleged to be due each of the assignors, after deducting ten dollars from the amount originally charged at the rate of three dollars for each eight hours of service. Judgment for $371.25 against each of the respondents is then prayed for.

There are several manifest uncertainties in the amended complaint, going to its very substance, but the demurrers were all general only, and they need not have been more to be effective.

If we view the action as one for the services of appellant's assignors, the amended complaint is insufficient, because it shows that they have been paid in full. Election officers, by express limitation contained in the statute, cannot be paid a greater compensation than ten dollars for each election during which they serve. (Pol. Code, sec. 1072.) The fact that the enactment applies to claims against the county treasury, while this action is against the supervisors as individuals, can make no difference. There was no contract, either express or implied, between the respondents and appellant's assignors. The latter have been paid the amount due them from the county treasury, the only source from which they could demand payment under the law.

If the action be regarded as one to recover damages, the amended complaint is equally defective. The action cannot be maintained by the appellant for the reason that the claims, being strictly personal and unconnected with any injury to property, are not assignable. The demands arise from an alleged omission tortious in character, and the rule just stated is the general rule as to such demands. (4 Cyc. 24; Lawrence v. Martin, 22 Cal. 173; Archer v. Freeman, 124 Cal. 528, 532, [57 Pac. 474].)

We need not take the time nor the space to mention other objections which respondents make to the sufficiency of appel

lant's pleading. It is enough to say that it appears not to present the semblance of an actionable controversy.

The judgment is affirmed.

Conrey, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 14, 1918.

[Civ. No. 1958. Second Appellate District.-November 16, 1917.] BELL DEVELOPMENT COMPANY (a Corporation), Respondent, v. W. A. MARSHALL, Appellant.

CORPORATION LAW-RECOVERY ON UNPAID STOCK SUBSCRIPTION-PLEADING INSUFFICIENT COMPLAINT.—In an action for an unpaid subscription to the capital stock of a corporation, the complaint fails to state a cause of action where there is no allegation that the plaintiff had followed and exhausted the procedure laid down in section 331 et seq. of the Civil Code.

ID. COLLECTION OF STOCK SUBSCRIPTIONS-PROCEDURE.-In this state, where the contract of subscription for stock is silent as to the time and manner of payment, calls for unpaid subscriptions are placed in the same class with assessments upon paid-up shares, and the provisions of section 331 et seq. of the Civil Code provide a complete scheme for the making of collections of each of the two kinds of obligations.

APPEAL from a judgment of the Superior Court of Imperial County. W. H. Thomas, Judge Presiding.

The facts are stated in the opinion of the court.

Childers & Bruce, for Appellant.

Herbert L. Iasigi, for Respondent.

WORKS, J., pro tem.-This is an action for an unpaid subscription to the capital stock of respondent corporation. The appellant interposed a general demurrer to the second amended complaint, the demurrer was overruled, and, the

appellant standing on the issue of law and refusing to answer, the respondent had judgment.

The pleading of the respondent alleges an ordinary demand for the payment of the subscription and the appellant's refusal to comply with the demand; but there is no allegation that the respondent has attempted to follow the provisions of section 331 of the Civil Code and those coming after it. In this state, where the contract of subscription for stock is silent as to the time and manner of payment, calls for unpaid subscriptions are placed in the same class with assessments upon paid-up shares, and the above-mentioned sections of the code provide a complete scheme for the making of collections of each of the two kinds of obligations. Suits cannot be commenced until the procedure there laid down has been exhausted, and in such a suit the complaint must show that the procedure has been followed. (Los Angeles Athletic Club v. Spires, 166 Cal. 173, [135 Pac. 298]; Imperial Land & S. Co. v. Oster, 34 Cal. App. 776, [168 Pac. 1159].)

The judgment is reversed, with directions to the trial court to sustain the demurrer.

Conrey, P. J., and James, J., concurred.

[Civ. No. 1741. Third Appellate District.-November 19, 1917.] JAMES L. DUNN, Respondent, v. ROBERT BARRY et al., Appellants.

PROMISSORY NOTE-ACCEPTANCE OF OVERDUE PAYMENT SUBSEQUENT DEFAULT OPTION TO ADVANCE MATURITY — LACK OF WAIVER.— Under the terms of a note and mortgage calling for the payment of the interest quarterly and providing that should default be made in the payment of any installment of interest when due, the whole sum of principal and interest should become immediately due and payable at the option of the holder of the note, an election after default in the payment of an installment of interest to waive immediate payment and accept the compounding of interest as provided in the note does not estop the holder from advancing the maturity of the principal as to a subsequent default, without first giving prior notice of his intention so to do, as the true rule is that where the holder acts promptly, the option may be excrcised upon default in any payment.

ID. OPTION NOT A PENALTY.-A provision in a mortgage giving the mortgagee the option to declare the entire amount due upon default in payment of any installment of interest is not a penalty, but an agreement as to the time when a debt shall become due, and enforceable according to its terms.

[D.-EXERCISE OF OPTION-SUBSEQUENT TENDER OF INTEREST-RIGHT OF FORECLOSURE NOT DEFEATED.-Tender of all interest due after the mortgagee had exercised his option to declare the entire sum due cannot defeat his right to foreclose his mortgage, as a tender of the full amount due is essential.

APPEAL from a judgment of the Superior Court of Kings County, and from an order denying a new trial. M. L. Short, Judge.

The facts are stated in the opinion of the court.

W. A. Martin, for Appellants.

C. W. Pendleton, Jr., and John W. Rankin, for Respondent.

BURNETT, J.-The action was for the foreclosure of a mortgage given to secure the payment of a promissory note for ten thousand dollars. The note and mortgage called for the payment of the interest quarterly, and provided that should default be made in the payment of any installment of interest when due, then the whole sum of principal and interest shall become immediately due and payable at the option of the holder of the note. The first quarterly installment of interest became due on June 23, 1914, but was not paid when due, $120 of such interest being paid by appellants on July 1, 1914, and the balance of said installment, to wit, $105, was paid about two weeks after said July 1st. The second quarterly installment of interest fell due on September 23, 1914, and was paid by appellants on October 16th, following. The third payment was due on December 23, 1914, and it not being paid, respondent on January 12, 1915, served upon apnellants, and each of them, a notice of election, declaring he whole of said ten thousand dollar note due and payable for the nonpayment of the quarterly installment of interest due December 23, 1914, and on January 18th following the complaint in foreclosure was filed. On January 22, 1915, appellant tendered to respondent in gold coin the sum of $225 in payment of the interest that was due on said December 23,