J. P. Fitzgerald, for Appellant.

C. L. Witten, Clarence C. Coolidge, and L. D. Bohnett, for Respondent.

THE COURT.-This is an appeal from an order made by the trial court, after a trial and hearing, whereby it was adjudged and decreed "that William R. Biaggi, the respondent, be suspended from the practice of law for the period of five years. That at the end of two years respondent may apply to be reinstated, and that, if it be proved to the satisfaction of the court at that time that the respondent has fully and fairly complied wih the order of suspension and has not directly or indirectly, or by any subterfuge whatsoever, practiced or attempted to practice law, either by securing assignments of causes of action to himself, or in any other manner, then, in that event, that the respondent be restored to the roll of attorneys. On the other hand, at the end of two years, if it shall appear to the court that he has directly violated the order of court, or been guilty of any additional conduct involving moral turpitude, that, at that time, an order of permanent disbarment be entered by the court. In the event that the court is not satisfied by the showing made by the respondent at the end of two years, and does not permanently disbar the respondent, in accordance herewith, then, in that event, the order of suspension shall continue in force for the entire period of five years."'

It is contended that in proceedings for suspension or disbarment the judgment or order should specify the particular charge or accusation upon which the attorney was disbarred or suspended. The rule contended for is applied chiefly to contempt proceedings where summary action has been taken without the formalities of accusation, answer, etc., and where the record consists of the order of suspension alone. (In re Shortridge, 5 Cal. App. 379, [90 Pac. 478]; Ex parte Henshaw, 73 Cal. 497, [15 Pac. 10]; State v. Watkins, 3 Mo. 480; Crites v. State, 74 Neb. 687, [105 N. W. 469].) It has been held that where the accusation in a disbarment proceeding charges certain facts which show conspiracy and prays that accused be found guilty and be disbarred, the final order of the court that the application of plaintiff shall be granted is a sufficient finding of the guilt

of the accused, the court saying that "there being but one charge, it is clear from the record that defendant was found guilty of that charge." (State v. Howard, 112 Iowa, 256, [83 N. W. 975].) The record before this court includes the accusation, answer, findings, and judgment. The findings state specifically the particular charges upon which the judg ment in question is predicated, and while findings are not required in proceedings for disbarment (Matter of Danford, 157 Cal. 425, [108 Pac. 322]), they are not prohibited, and when present are properly a part of the record which this court may review. (In re Wharton, 114 Cal. 367, [55 Am. St. Rep. 72, 46 Pac. 172].)

It is urged that the judgment is conditional, and therefore void. The code defines a judgment to be "the final determination of the rights of the parties in an action or proceeding." (Code Civ. Proc., sec. 577.) "If a judgment, though upon the merits or determining some substantial rights, leaves necessary further judicial action before the rights of the parties are settled it is not final." (1 Freeman on Judgments, 4th ed., sec. 16.) That part of the court's order which requires the respondent's disbarment at the end of two years, at another hearing, before another judge most probably, and upon other evidence of additional conduct involving moral turpitude, must be held to be an attempt to prejudge and predetermine matters not before the court at the time the present order was made. (Consolidated Mining etc. Co. v. Huff, 62 Kan. 405, [63 Pac. 442].) There is no difficulty, however, in separating the latter part of the court's order from the first part which decrees that William Biaggi be suspended from the practice of law for the period of five years with the privilege of applying for reinstatement at the end of two years. That decree is certain and meets all the requirements of a final judgment, and hence the latter part of the order, which is invalid, may be disregarded as surplusage. (Philbrook v. Newman, 85 Fed. 139.)

The trial court found on ample evidence that Biaggi appeared before the superior court of Santa Clara County as attorney in the matter of certain adoption proceedings and falsely stated to that court that the father of the minor child in question had never taken any interest whatever in said child; and that Biaggi did, at that time, "intentionally, willfully, knowingly, and fraudulently conceal" from the court

the fact that the father was then endeavoring in an action before another Department of the same court to obtain the custody of the child; and further, that from the month of October, 1911, up to February 22, 1916, Biaggi caused to be published in certain newspapers of general circulation an advertisement reading:

"Wm. R. Biaggi Specialties.

"ATTORNEYS"

Divorce, Probate and Criminal Law my Notary Public. Consultation Free.

426-27 Bank of San Jose Bldg. Phone San Jose 1638."

The court properly held that appellant's conduct in thus advertising was contrary to and in violation of the provisions of section 159a of the Penal Code.

This disposes of all of the points worthy of discussion.

The judgment hereinbefore set forth shall be modified to read that William R. Biaggi, the respondent, be suspended from the practice of law for the period of five years. That at the end of two years respondent may apply to be reinstated. As so modified the judgment stands affirmed.

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 May 31, 1918.

[Civ. No. 2305. First Appellate District.-April 2, 1918.] MARCONI WIRELESS TELEGRAPH COMPANY OF AMERICA (a Corporation), Plaintiff, Appellant and Respondent, v. NORTH PACIFIC STEAMSHIP COMPANY (a Corporation), Defendant, Respondent and Appellant.

CONTRACT-INSTALLATION OF WIRELESS TELEGRAPH EQUIPMENT DAMAGES FOR BREACH-EVIDENCE-BURDEN OF PROOF.-In an action for damages for breach of a contract whereby it was agreed that the plaintiff would install wireless equipment in a certain steamship in the possession of defendant under a charter, keep it in repair, and furnish and pay a competent operator, the mere introduction of the contract and showing the breach thereof did not make out a prima facie case of damages for the unpaid contract

price, since it was obvious that plaintiff would be put to more than trivial expense in performing its part of the contract, and its profit substantially less than the contract price, and therefore the burden was upon the plaintiff to prove the profits it would have made had defendant complied with its contract and paid for the services. TELEGRAPH CORPORATIONS-FAILURE TO FILE SCHEDULE OF RATES WITH RAILROAD COMMISSION-CONTRACTS NOT VOID-CONSTRUCTION OF PUBLIC UTILITIES ACT.-A contract for the installation of a wireless equipment on a steamship and furnishing an operator therefor is not void because of the failure of the telegraph company to file with the railroad commission a schedule showing the charges for the transmission of messages, as required by the Public Utilities Act, section 18 (Stats. 1911, p. 18), since the act does not make such contracts unlawful, but merely imposes a penalty for its violation.

APPEALS from portions of the judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

Samuel Knight, and F. E. Boland, for Plaintiff, Appellant and Respondent.

Marcel E. Cerf, and Charles H. Sooy, for Defendant, Respondent and Appellant.

KERRIGAN, J.-This is an action wherein plaintiff seeks to recover from the defendant certain sums of money claimed to be due it for the installation and operation of certain wireless equipment on vessels in the possession of the defendant, under two written contracts. The complaint is in two counts. The first count is based on a contract dated January 15, 1914, and the second upon a contract dated July 1, 1913. Judgment went for the plaintiff on the first count for the sum of one dollar, and on the second count for the sum of $1,620. Both parties being dissatisfied with the judgment have appealed therefrom, plaintiff from that part thereof which awards to it only nominal damages, and defendant from the portion thereof by which plaintiff recovers the sum of $1,620.

Considering plaintiff's appeal first, it is disclosed by the record that in the month of January, 1914, the parties entered into the first of the above-mentioned contracts, whereby

it was agreed that the plaintiff would install wireless equipment in a certain steamship in the possession of the defendant under a charter, and would provide and pay a competent operator, for which services defendant agreed to pay to plaintiff one hundred dollars per month, and the contract was to continue for one year. Under this contract the plaintiff installed wireless equipment on said vessel and furnished a competent operator, and defendant paid to plaintiff the sum of one hundred dollars per month up to March 31, 1914, when it discontinued such payments. On the seventh day of April, 1914, the charter under which the defendant held the vessel was canceled and the ship was taken over by the owner; whereupon the defendant sought to cancel the contract, but plaintiff refused to permit it to do so, and after the period covered by the contract had elapsed brought this action.

There is no dispute between the parties as to the measure of damages applicable to the case if the plaintiff is entitled to any damages at all. If we understand the contentions of the parties, the damages recoverable by the plaintiff consist of the profit which would have resulted to it if it had been permitted to carry out its contract, plus any costs and expenses incurred as a consequence of the breach. (McConnell v. Corona, 149 Cal. 60, 65, [8 L. R. A. (N. S.) 1171, 85 Pac. 929]; Civ. Code, sec. 1512; Ahlers v. Smiley, 163 Cal. 200, 205, [124 Pac. 827]; 13 Cyc. 156.) The question upon which counsel disagree is as to where lies the burden of proof, plaintiff's contention in that behalf being that the payments required by the contract furnish prima facie the measure of damages, and that the burden of proof was on the defendant to show, if it could, that such were not the actual damages. Applying this principle, it is pointed out by plaintiff that upon the submission of the case, it having shown the facts as above narrated, and the defendant having shown nothing in mitigation of damages, the plaintiff was entitled to judgment for nine hundred dollars.

There is a class of cases in which if the obligor to the contract repudiates it before the obligee has had an opportunity to perform, the contract price is prima facie the measure of damages, and matters of mitigation and reduction must be shown by the obligor. Such are cases of contracts for personal services (Milage v. Woodward, 186 N. Y. 252, [78 N. E. 873]; Howard v. Daly, 61 N. Y. 362, 371, [19 Am. Rep. 285]),