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. Walker, 116.) 2. PLEADING (Ryan v. 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 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owner of property to procure a purchaser had obtained a prospective purchaser, the broker's contract with the owner was rescinded by mutual consent and thereupon the prospective purchaser promised the broker to pay him a certain commission in consideration of obtaining the property at a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 grow. ing 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 AGENCY (Continued). its possession, with damages for its depreciation and detention. (Hutchinson v. Scott, Magner & Miller, 171.) 8. BROKERS-SALE OF REAL ESTATE STATUTE OF FRAUDS-ACTION FOR COMMISSION. To entitle a broker to commission, he must show written authority and also that he had either accomplished the sale or produced a purchaser ready, willing, and able to purchase. (Wooley v. Batchelder, 177.) 9. SALE BY OWNERS.-Under the facts in this case it is held that the broker was not entitled to recover. (Id.) 10. CORPORATION LAW-POWER OF GENERAL MANAGING AGENT.-If corporation's business is transacted by a general managing agent, who is suffered to exercise general authority in respect to the business, the corporation is bound by his acts within the scope of the powers assumed by him, in the same manner as if expressly granted. In respect to the management of its business, a general managing agent and superintendent is the representative of the corporation, and may do in the transaction of its ordinary affairs what the corporation itself could do within the scope of its powers. (Raftis v. McCloud River Lumber Co., 398.) 11. AGENCY-EVIDENCE-TESTIMONY OF AGENT.-The rule that the declarations of an agent are as against his principal inadmissible to prove the fact of his agency does not apply to his testimony as a witness in the trial in which such fact is in issue; and consequently the testimony of the agent, unless he is disqualified for some other reason, is competent to establish the fact of his agency and the existence of facts from which the agency may be inferred. (Id.) See Contract, 24; Corporation Law, 12; Negligence, 7, 9, 20; AMENDMENT. See Estates of Deceased Persons, 2; Pleading, 4. APPEAL. 1. JUDGMENT STATEMENT OF JUDGE IN ORAL DECISION-RECORD.— On an appeal from a judgment, a statement of facts made by the trial judge in rendering his oral decision, although printed in the appellant's brief, cannot be treated as forming any part of the record, nor used to supply findings or to influence the judgment in any way. (Curtin v. Black Oak Development Co., 1.) 2. FINDINGS TO SUPPORT JUDGMENT - PRESUMPTION.-On an appeal from a judgment the appellate court must presume that the trial judge found every fact warranted by the evidence which is necessary to support the judgment. (Id.) 3. ALTERNATIVE METHOD-RECORD AND CONTENTS.-Judgment should be affirmed for failure to print any part of judgment-roll with the brief. (Easterly v. Praul, 39.) 35 Cal. App.-52 APPEAL (Continued). 4. ALTERNATIVE METHOD-BRIEF-INSUFFICIENT RECORD.-On an appeal taken from a judgment under the alternative method, the judgment must be affirmed where the appellant fails to print in its brief sufficient of the record to properly present the points relied upon for reversal. (Jones v. American Potash Co., 128.) 5. ALTERNATIVE METHOD-RECORD NOT PRINTED IN BRIEF-AFFIRMANCE OF APPEAL.—An order granting a motion to set aside a judgment and granting permission to file an amended complaint must be affirmed on appeal, where there is no record other than a typewritten transcript prepared in accordance with section 953a of the Code of Civil Procedure, and the brief of appellant contains none of the evidence and no part of the record as required by section 953e of such code. (Stewart v. Andrews, 230.) 6. PREPARATION OF TRANSCRIPT-CERTIFICATION-CURE OF OMISSION TO ORDER PREPARATION.—Where on an appeal from a judgment the appellant filed within the required time a notice of intention and request for a transcript in accordance with the provisions of section 953a of the Code of Civil Procedure, and the court never ordered the reporter to prepare the transcript as required by such section, but the transcript was prepared and certified by the judge, the omission to order the preparation was cured by the certification. (White v. Hendley, 267.) 7. ORDER DENYING NEW TRIAL-REVIEW-APPEAL FROM JUDGMENT.Under the amendment of 1915 to section 956 of the Code of Civil Procedure, an order denying a motion for a new trial is reviewable on an appeal from the judgment. (Id.) 8. LACK OF GOOD FAITH-PENALTY.—An appeal from a judgment in an action for conversion, for insufficiency of the evidence to sustain certain findings, cannot be regarded as having been made in good faith, and is a proper case for the imposition of a penalty for the taking of a frivolous appeal, where reversal is asked merely because of a claimed preponderance of the evidence in favor of the appellant, although the findings are directly and substantially supported by other evidence. (Brannigan v. Miller, 292.) 9. ALTERNATIVE METHOD TYPEWRITTEN TRANSCRIPTS-REVIEW.-While the alternative method of appeal permits parties to file typewritten transcripts in lieu of printed judgment-rolls and bills of exceptions, such permission casts no burden upon the appellate courts to examine the typewritten documents in deciding the appeal. (Huffaker v. McVey, 302.) 10. DISMISSAL OF ACTION-FAILURE TO FILE BOND REQUIRED BY LIBEL AND SLANDER ACT-NATURE OF ACTION-DEFECTIVE RECORD.-Upon an appeal from a judgment of dismissal of an action after refusal of the plaintiff to file a bond as required by the provisions of the libel and slander act (Stats. 1871-72, p. 533), where the appellant APPEAL (Continued). contends that the amended complaint was not one for either libel or slander, it is the duty of appellant to print in his brief the whole of the complaint and not mere fragments thereof, in order to enable the appellate court to determine its character. (Id.) 11. ALTERNATIVE METHOD RECORD.-Where an appeal is taken under the alternative method, and neither party prints in his brief such portions of the record as he desires to call to the attention of the appellate court, the typewritten transcript will not be examined. (Hepler v. Wright, 567.) 12. ORDER DENYING NEW TRIAL EFFECT OF CODE AMENDMENT.The amendment of August 8, 1915, to section 963 of the Code of Civil Procedure, taking away the right of appeal from orders denying motions for new trials, is applicable in every case where the order was made subsequent to the date of the taking effect of the amendment, notwithstanding the right to appeal from the judgment in such case had expired prior to the amendment. (Watt v. Bekins Van & Storage Co., 776.) 13. ALTERNATIVE METHOD SUFFICIENCY OF RECORD.-On an appeal from a judgment alone under the alternative method, where there is before the court a typewritten copy of the judgment-roll certified by the clerk of the trial court, the appeal will not be dismissed because of the absence of such record of the trial as is designated under section 953a of the Code of Civil Procedure, to take the place of a bill of exceptions. (Beckett v. Stuart, 796.) See Assault, 1; Bill of Exceptions, 1; Bonds, 3; Certiorari, 2; Con- APPEARANCE. See Dismissal, 5. ASSAULT. 1. ACTION FOR DEATH-ASSAULT AS CAUSE-CONFLICT OF EVIDENCEVERDICT NOT DISTURBED.—The record disclosing a substantial conflict in the evidence as to whether the defendant struck the deceased without cause or not in necessary self-defense, and also as to whether death was caused by the blows alleged to have been struck, the verdict awarding damages cannot be disturbed on appeal. (Marks v. Reissinger, 44.) 2. STATUTE OF LIMITATIONS-TIME FOR COMMENCEMENT OF ACTION.The time for bringing an action of this character begins to run from the time of the death of the injured person, and not from the time the injury causing his death was inflicted upon him. (Id.) 3. RIGHT OF ACTION OF HEIRS-FAILURE OF DECEASED TO SUE.-The right of heirs and representatives to sue under section 377 of the Code of Civil Procedure is not affected or barred by the failure of the deceased to sue in his lifetime. (Id.) ASSESSMENT. See Corporation Law, 1; Injunction, 1 ASSIGNMENT. CORPORATIONS-ASSIGNMENT OF CAUSE OF ACTION.-An assignment, for collection, of a cause of action was properly executed by the presi dent under the corporate seal, without action by the board of di rectors when that was the business custom of the corporation. (Burrell v. Southern California C. Co., 162.) See Election Law, 2; Promissory Note, 3. ASSIGNMENT FOR BENEFIT OF CREDITORS. See Vendor's Lien, 3. ATTACHMENT. 1. THIRD-PARTY CLAIM.-Unverified demand is insufficient although "acknowledged" before a notary. (Easterly v. Praul, 39.) 2. SHERIFF RELEASE OF ATTACHMENT-LACK OF WRITTEN AUTHORIZATION-LIABILITY FOR JUDGMENT-CONSTRUCTION OF SECTION 4166, POLITICAL CODE.-Under section 4166 of the Political Code, which provides that no direction or authority by a party or his attorney to a sheriff, in respect to the execution of process or return thereof, or to any act or omission relating thereto, is available to discharge or excuse the sheriff from a liability for neglect or misconduct, unless it is contained in a writing, signed by the attorney of the party, or by the party, if he has no attorney, a sheriff who levied a writ of attachment upon certain real estate, and thereafter released such attachment without obtaining the written consent of the attaching party, and placed the attachment upon money in escrow payable to the defendant, in consequence of which plaintiff's judgment was not satisfied, is liable to the plaintiff for the amount of his judgment. (Robinson v. Baker, 318.) See Stipulation, 1. ATTORNEY AND CLIENT. SERVICES IN DIfferent CapaciTIES-RIGHT OF RECOVERY.-An attorney at law may in an action for professional services also recover compensation for services rendered in the capacity of an attorney in fact. (Creely v. Cohen, 642.) ATTORNEY AT LAW. 1. UNAUTHORIZED USE OF NAME-ACTION FOR DAMAGES-PLEADING— SUFFICIENCY OF COMPLAINT.-In an action by an attorney at law for damages to his professional reputation, the complaint is sufficient as against a general demurrer under which at least nominal damages are recoverable, where it appears therefrom that the defendant, without the consent or knowledge of the plaintiff, caused to be sent out and mailed, with plaintiff's name appended thereto as the sender in |