or destruction, the expense of cultivating, harvesting and marketing the crops, and the market value at the time of maturity, or within a reasonable time after the injury or destruction of the crops. And while all such evidence may be considered by the jury in determining the amount of damages, if any, still the true measure of compensation is the value of the crops in the condition they were at the time of their injury or destruction." The court then cites Shoemaker v. Acker, 116 Cal. 239, [48 Pac. 62], and other authorities, stating that "the introduction of such evidence as the means of arriving at value is distinctly approved, and the same proposition is recognized as containing the true element for determining damage in Ellis v. Tone, 58 Cal. 289."

This question was considered to a considerable extent in this court in an opinion written by Justice Hart in Dennis v. Crocker-Huffman Land & Water Co., 6 Cal. App. 58-65, [91 Pac. 425].

The detriment proximately caused by the tort in this case under the rule above stated is to be measured by the market value at plaintiff's landing on the San Joaquin River at harvest time. From the evidence already quoted, it appears without conflict that plaintiff properly seeded the land and that the crop had reached a stage justifying the attorney for defendant to state: "We will admit that the grain was in a fine condition." There remained therefore, to determine the cost of cutting, baling, and hauling the hay to plaintiff's landing. These items should be deducted from the market value of the hay at the landing, and the balance, after such deduction, would constitute the damages to which plaintiff was entitled.

We think there is ample evidence to have justified the court in finding as to the quantity of hay that would have been produced on the flooded land and its value at the plaintiff's landing the market place.

We think, therefore, that the finding "that the amount of plaintiff's said damage is (from a practical standpoint) unascertainable from the evidence; that is to say, it is absolutely impossible for this court to determine from the evidence the amount of such damages suffered by the plaintiff," is not sustained, nor is the further finding "since the exact amount of the damages sustained by him is not definitely shown by the evidence, his damages must be found to be nominal."

We do not think it necessary that a new trial be ordered, as the evidence is sufficient and is uncontradicted from which findings may be made upon the question of plaintiff's damages. (Riverton Ferry Co. v. McKeesport etc. Bridge Co., 179 Pa. St. 466-470, [36 Atl. 186].)

The judgment is affirmed in all respects except that portion adjudging the plaintiff to be entitled to nominal damages only, as to which the judgment is reversed. The cause is remanded, with directions to the court to make findings on the issue of damages in accordance with the rule in this opinion stated, and upon the evidence found in the record, and to amend the judgment in accordance with such findings.

Burnett, J., and Hart, J., concurred.

[Civ. No. 1970. Second Appellate District.-December 17, 1917.] GEORGE L. EASTMAN, etc., Respondent, v. SUNSET PARK LAND COMPANY (a Corporation), Appellant.

PROMISSORY NOTE-PAYMENT IN U. S. GOLD COIN-NOTE PAYABLE IN MONEY-NEGOTIABLE INSTRUMENT.-A promissory note payable "in U. S. gold coin" is a note payable in money only within the mean. ing of section 3088 of the Civil Code, and therefore a negotiable instrument, notwithstanding the fact that it prescribes a particular kind of money.

ID.-ATTORNEY FEES IN CASE OF SUIT-NEGOTIABLE INSTRUMENT.—A promissory note containing an agreement that in case suit is instituted to collect the note the makers will pay such additional sum as the court may adjudge reasonable as attorney's fees in the suit is a negotiable instrument, although the amount is uncertain, since section 3087 of the Civil Code, defining a negotiable instrument as a promise to pay a sum certain, is modified by the exception contained in section 3088 that such an instrument may provide for the payment of attorney's fees and costs of suit in case suit be brought thereon to compel the payment thereof.

ID.-STATEMENT OF AMOUNT OF ATTORNEY'S FEES-PROVISION NOT ENFORCEABLE.—A provision in a promissory note for attorney's fees in a stated sum is not necessarily enforceable for the full amount stated, since it cannot be said from the nature of the case it would be impracticable or extremely difficult for the court, in the event of a breach of the contract and an action thereon, to fix the actual damage thus suffered by the holder of the note.

APPEAL from a judgment of the Superior Court of Los Angeles County. John W. Shenk, Judge.

The facts are stated in the opinion of the court.

John E. Biby, for Appellant.

Emmet H. Wilson, for Respondent.

CONREY, P. J.-The plaintiff being the owner of a promissory note made by the defendant Sunset Park Land Company in favor of defendant T. G. Rickman, brought this action and obtained judgment, from which the Sunset Park Land Company appeals. It is admitted that the judgment should be sustained if the note was a negotiable instrument. Appellant contends that the note was not a negotiable instrument because by its terms it was made payable "in U. S. gold coin," and because it contains an agreement that "in case suit is instituted to collect this note or any portion thereof, we promise to pay such additional sum as the court may adjudge reasonable as attorney's fees in said suit."

Section 3088 of the Civil Code, as it was when said note was made, read as follows: "A negotiable instrument must be made payable in money only and without any condition not certain of fulfillment, except that it may provide for the payment of attorney's fees and costs of suit, in case suit be brought thereon to compel the payment thereof." According to section 3087 of the Civil Code, "A negotiable instrument is a written promise or request for the payment of a certain sum of money to order or bearer, in conformity to the provisions of this article."

We are of the opinion that a note which is made payable in U. S. gold coin is a note payable in money only, notwithstanding the fact that the note prescribes a particular kind of money. Appellant claims that the negotiable character of the note is destroyed, in that by its terms it does not provide for the payment of a sum certain. Conceding that the sum is not certain, it is none the less our duty to give full effect to the exception stated in section 3088, notwithstanding that the amendment which enacted that exception did not in direct terms amend section 3087. In legal effect, it necessarily modifies the definition of a negotiable instrument by

leaving the amount of the attorney's fees uncertain. Even if the note had provided for attorney's fees in a stated sum, the amount would remain uncertain, since that would be only the maximum sum, and the court might allow only a smaller amount, if the sum stated in the note exceeded reasonable limits. This conclusion results from the fact that expenditures made for attorney fees in an action based upon a contract containing a stipulation for such fees are in the nature of special damages incidental to the breach of the contract and which, according to the terms of the contract, are to be compensated for in addition to recovery of the principal sum due. (Prescott v. Grady, 91 Cal. 518, [27 Pac. 755].) It cannot be said that from the nature of the case it would be impracticable or extremely difficult for the court, in the event of a breach of the contract and an action thereon, to fix the actual damage thus suffered by the holder of the note. Therefore, an agreement attempting to determine the amount of such damage in anticipation of a breach of the obligation is not enforceable. (Civ. Code, secs. 1670, 1671.) The maximum sum to be thus recovered might be limited in the contract, only for the reason that in the absence of an agreement for attorney fees no such fees could be recovered at all.

We think that the note in question was a negotiable instrument, and therefore the judgment is affirmed.

James, J., and Works, J., pro tem., 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 February 14, 1918.

[Civ. No. 2445. Second Appellate District.—December 17, 1917.] W. C. MUSHET, Respondent, v. DEPARTMENT OF PUBLIC SERVICE OF THE CITY OF LOS ANGELES (a Municipal Corporation), et al., Appellants. MANDAMUS-INSPECTION OF PUBLIC RECORDS-PARTY BENEFICIALLY INTERESTED. In an action in mandamus by a resident, citizen, and taxpayer of the city of Los Angeles to compel its officers to allow the plaintiff to inspect and examine certain of the books of account, records, papers, and documents kept by such officers, under the

claim that the same were public records, a judgment on the pleadings in favor of the plaintiff was erroneous, where the answer alleged that the plaintiff was not the party beneficially interested, but sought the information for a gas and electric corporation engaged in competition with the city.

MUNICIPAL CORPORATIONS-BOOKS OF ELECTRIC SYSTEM OF LOS ANGELES -PRIVATE PROPERTY.-Books of the city of Los Angeles relating to its electric system are not public documents, as that term is used in sections 1888 and 1894 of the Code of Civil Procedure, providing for inspection of public records, but are the city's private property. ID. INSPECTION OF CITY'S PRIVATE RECORDS-RIGHT OF CITIZEN.—A citizen of the city of Los Angeles has the right to inspect the books and papers of the municipal electric system conducted by that city to the same extent as a stockholder of an ordinary corporation can inspect the books of such a corporation.

APPEAL from a judgment of the Superior Court of Los Angeles County. Grant Jackson, Judge.

The facts are stated in the opinion of the court.

Albert Lee Stephens, City Attorney, W. B. Mathews, Lewis E. Whitehead, and Wm. B. Himrod, for Appellants.

Delphin M. Delmas, for Respondent.

WORKS, J., pro tem.-This action was commenced for the purpose of compelling appellants, by writ of mandate, to allow respondent to inspect and examine certain of the books of account, records, papers, and documents kept by appellants, under the claim that the same are public records. The petition for the writ alleges that respondent is a resident, citizen, and taxpayer of the city of Los Angeles, to the affairs of which the duties of appellants relate. The appellants answered the petition and the respondent made a motion for judgment on the pleadings, which was granted and judgment was rendered accordingly. It is from the judgment that the appeal is prosecuted.

In ruling upon the motion for judgment on the pleadings, the trial judge took the allegations of the answer as true (Bradford Investment Co. v. Joost, 117 Cal. 204, 211, [48 Pac. 1083]), and the points presented on this appeal turn on the question as to whether the answer states a defense. If it does, the motion for judgment on the pleadings was improperly granted.