INDEX.

(813)

INDEX.

ABANDONMENT. See Contract, 17; Dedication, 5.

ACCIDENT. See Workmen's Compensation Act, 19, 20.

ACCOMPLICES. See Criminal Law, 47.

ACCOUNT.

1. IMPROPER ITEM-BILL OF PARTICULARS-ADMISSION IN EVIDENCE
WITHOUT OBJECTION.-In an action to recover a balance due on a
mutual, open, and current account, for moneys advanced and loaned,
the defendant cannot complain that he was surprised or misled by
proof that one item of the account was for commissions in consum-
mating an exchange of real property, where a bill of particulars
showing such item was furnished, and the bill admitted in evidence
without objection. (Gallwey v. Castelhun, 589.)

2. ADJUSTMENT OF ITEMS ARISING OUT OF EXCHANGE.-Where parties
to an exchange of property agreed that the rents, taxes, and interest
should be adjusted pro rata as of the date when the transaction was
consummated by the exchange of deeds, there was no account stated
until the adjustment was made, since one of the essentials of such
an account is a previous indebtedness. (Id.)

ACCOUNT STATED. See Account, 2.

ACKNOWLEDGMENT. See Criminal Law, 2; Statute of Limita-
tions, 1.

ACTIONS.

ACTION AGAINST STATE-RECOVERY OF CORPORATION LICENSE TAXES-
CONSENT ESSENTIAL.-An action cannot be maintained by the as-
signee of a large number of corporations against the Secretary of
State and state treasurer to recover sums of money paid by the
assignors to the Secretary of State under the provisions of the annual
corporation license tax law, without the consent of the state itself,
since the state is the real party against whom the relief is sought.
(McClellan v. State of California, 605.)

ADVERSE POSSESSION. See Dedication, 5.

AFFIDAVIT. See Estates of Deceased Persons, 5.

AGE. See Criminal Law, 35.

(815)

AGENCY.

1. REALTY BROKER-STATUTE OF FRAUDS.-An unwritten agreement authorizing or employing an agent or a broker to purchase or sell real estate is void under section 1624 of the Civil Code. (Ryan v. Walker, 116.)

2. PLEADING

WORDS AND PHRASES — “MIDDLEMAN.”—An allegation that a real estate broker was a "middleman" and not an agent does not affect the contention that an agreement employing a broker is void when not in writing. (Id.)

3. SEVERABLE CONTRACT-REAL AND PERSONAL PROPERTY.-Where a broker's contract relates to both real and personal property, the statute of frauds is not applicable so far as the personal property is concerned. (Id.)

4. PROMISE TO ANSWER FOR DEFAULT OF ANOTHER.-Where, after a broker employed by the owner of property to procure a purchaser had obtained a prospective purchaser, the broker's contract with the owner was rescinded by mutual consent and thereupon the prospective purchaser promised the broker to pay him a certain commission in consideration of obtaining the property at a lower price, there was no necessary connection between this contract and the one with the owner, and it was not a promise to answer for the default of the owner. (Id.)

5. PLEADINGS-DEMURRER-IMPROPER JOINDER OF CAUSES OF ACTION.A complaint which unites a cause of action for a commission growing out of the transfer of real property with another for a commission growing out of the transfer of personal property is demurrable under subdivision 5 of section 430 of the Code of Civil Procedure. (Id.)

6. VOID CONTRACT-WANT OF CONSIDERATION.-It is held in this case from the facts as stated in the complaint that the alleged contract by a purchaser to pay a broker a commission on the purchase of personal property was void for want of consideration. (Id.) 7. UNAUTHORIZED SALE BY AGENT - RATIFICATION - ACCEPTANCE OF BENEFITS BY PRINCIPAL-NO RATIFICATION WHEN ACTUAL FACTS NOT DISCLOSED.-Where an agent, authorized to sell an automobile for eight hundred dollars cash, and not to make delivery until purchase price was fully paid, sold for fifty dollars and a secondhand car, but remitted to the principal four hundred dollars, and falsely reported that he had sold for four hundred dollars and a used car, which he would shortly sell for four hundred dollars, and the principal retained the four hundred dollars and replied that, while not entirely satisfied, he would accept the transaction provided the agent would himself pay the remaining four hundred dollars within thirty days and comply with certain other conditions, the principal, on discovering the facts, was entitled to maintain against the vendee, to whom the car had been delivered, an action to recover