action by plaintiffs to recover a balance claimed to be due them. Defendant in his answer set up, among other things, a counterclaim for $1,903.12, which he claimed to be due him under the contract as packing charges at the agreed rate of $2.50 per ton for 761.25 tons of the one thousand tons guaranteed, only 238.75 tons having been purchased prior to the fire. The allowance of this counterclaim by the trial court is the only issue on this appeal.

Appellant's main contention is that the contract was terminated by the destruction by fire of respondent's packing plant. It is an undoubtedly sound principle of the law of contracts that, when the performance thereof depends on the continued existence of a given person or thing, a condition is implied that the impossibility arising from the perishing of the person or thing excuses performance, but we must confess that we are unable to follow counsel in their endeavor to apply the rule to this case. Neither in the evidence nor in the briefs is there anything to show that the place of packing fruit has any peculiar bearing upon the quality of the fruit packed, and in the absence of such showing we must take the common-sense view of the contract adopted by the trial court, namely, that the contract is essentially one for the performance of personal service by the defendant, which might be performed as effectively in one place as in another, and that if defendant, after the fire, could pack fruit according to the standard set in the contract, he was entitled to tender another plant for the completion of the work contemplated therein. The fact that the packing-house was specially mentioned in the contract was of no more moment than the mentioning of the residence of the parties, and the provision for the exclusive use of the plant was obviously inserted to secure the undivided attention of the respondent to the work contemplated. We are, therefore, of the opinion that the respondent was within his rights in tendering another plant for the performance of his contract.

Appellants' second point is that the tender of the "A & C Ham" plant was not good, for the reason that the "processer" for treating prunes in that plant was different from that in the one destroyed. The lower court found, however, on ample evidence from prominent experts familiar with both houses that the "A & C Ham" plant was in every way as suited to the doing of the work contemplated by the con

tract as was the original plant, and this finding we cannot disturb on appeal.

The last contention made by appellants is that the guarantee clause in the contract was void as providing for liquidated damages. As this point was neither raised in the court below nor mentioned in the briefs, but was presented for the first time upon the oral argument, we are not required to discuss or decide it. We may state, however, that in our opinion the clause referred to provides not for liquidated damages, but for a minimum compensation to defendant for the services to be rendered by him during the year for which he was employed.

The judgment is affirmed.

Kerrigan, J., and Beasly, J., pro tem., concurred.

[Civ. No. 1767. Third Appellate District.-April 4, 1918.] ADDIE HALLAWELL et al., Respondents, v. UNION OIL COMPANY OF CALIFORNIA (a Corporation), Appellant.

NEGLIGENCE

OIL COMPANY ENGAGED IN DISTILLATION OF ASPHALT DISCHARGE OF GAS-STILL-CONTACT WITH FURNACE FIRES.-An oil company engaged in producing commercial asphaltum from crude petroleum, and incidentally to preserve such oils as might be condensed from gases in the process, is guilty of negligence where its master mechanic, in attempting to repair a gas-still, permitted the discharge of its highly inflammable fluid in such a way as to come in contact with furnace fires and to spread quickly to the immediate vicinity of an open trap, the surface of which carried more or less oil and inflammable material.

ID. ACTION FOR DEATH-BURNING IN FIRE OF ASPHALT SHED-PROXIMATE CAUSE-PROOF.-In an action against an oil company engaged in the distillation of asphalt for death by fire of a carpenter employed in one of its sheds, the plaintiffs were not required to show with absolute certainty that the fire which originated at the asphalt-stills through the company's negligence was communicated to the shed and was the proximate cause of the death.

ID. EXPERT OPINION-COMPETENT TESTIMONY.-In an action against an oil company engaged in the distillation of asphalt for the death

of a servant, by fire, the trial court properly allowed an expert wit ness to testify, in answer to hypothetical questions, as to the effect of burning oil at the intake of a six-inch pipe when only a small quantity of water was passing into the pipe, although there was testimony that when the asphalt-stills were in full operation, as at the time of the fire, a trench usually carried water from condensers sufficient to fill half the pipe at its intake. ID.-EVIDENCE-BASIS OF HYPOTHETICAL QUESTION.-A hypothetical question must be based upon evidence, but the basis may consist of any condition of facts the evidence of which tends to establish the facts assumed, or which the jury may reasonably find to be proven. ID. RESULT OF EXPERIMENT-TESTIMONY OF BYSTANDER.-A bystander to an experiment, though not assisting in any way to make it, may testify as to its result if he had knowledge of all the conditions of the experiment, and it was one involving no special technical knowledge, or was such that its result could be seen and understood by a person of ordinary judgment.

ID. EXCLUSION OF TESTIMONY OF BYSTANDER-ERROR WITHOUT PREJUDICE. In such an action, the ruling of the trial court denying defendant the right to show by a bystander the result of an experiment was not error where the tendency of the experiment was to prove a fact not disputed.

APPEAL from a judgment of the Superior Court of Contra Costa County, and from an order denying a new trial. R. H. Latimer and A. B. McKenzie, Judges.

The facts are stated in the opinion of the court.

Chickering & Gregory, Evan Williams, Frank H. Gould, B. V. Sargent, and J. E. Rodgers, for Appellant.

Stetson & Koford, A. T. Shine, Elmer E. Nichols, and T. D. Johnston, for Respondents.

CHIPMAN, P. J.-Plaintiffs bring the action as heirs at law of Charles Hallawell, deceased, who, it is alleged, lost his life on December 9, 1913, at Oleum, Contra Costa County, through the alleged negligence of defendant. The cause was tried before a jury and plaintiffs had the verdict. Judgment was entered thereon, from which and from the order denying its motion for a new trial defendant appeals.

36 Cal. App.-43

16

We have prepared the following rough diagram taken from data furnished by two exhibits found in the record:

This seemed necessary to a fair comprehension of the evidence in the case. The main object of defendant's plant was to produce commercial asphaltum from crude petroleum and incidentally to preserve such oils as might be condensed from gases in the process.

The battery of asphaltum-stills consisted of ten separate stills, to each of which was attached a condenser. A furnace commencing at still number 10 at the north end of the battery ran under all the stills to still number 1. Still 10 was connected with still 9 and still 9 with still 8, and so on to still 1. East of the stills some distance was the gas-receiver, noted on the diagram, into which gases that did not condense were carried from the condensers and thence by a pipe these gases were conveyed to the gas-seal situated near the northwest corner of the stills, and the inflammable gas was taken by a pipe from the gas-seal to the furnace under the stills and burned. A ditch ran along on the west side of the stills into which the waste water from the condensers ran and was brought to a point near still number 7, where this overflow was taken up by a six-inch pipe and carried about eighteen feet at a grade of .32 in that distance to the open trap noted on the diagram. At the lower or west side of this trap, which latter was flush with the surface of the ground and was about eighteen inches square, was an eightinch pipe so set in the trap as to carry away the contents of the trap but leaving the discharge of the six-inch pipe slightly below the surface of the water. About four or five feet west of the trap this eight-inch pipe made a right angle down about six feet and resumed its course west for about sixty feet and at about the same grade at the six-inch pipe, where it discharged in a wooden ditch in front, on the east side of the group of sixteen asphalt kettles. Between the trap and the drop in the eight-inch pipe was a valve intended to shut off the flow through that pipe. Immediately west of this row of asphalt kettles and connected with them was a two-story wooden building of dimensions 130 feet by 150 feet. The asphalt, after cooling, was here drawn into barrels. through long spouts leading from the kettles and stored on the first-story floor of this building, and was shipped from the platform on the west side of the building. This lower story was entirely open on all sides, the upper story, ten feet above, being supported by the necessary timbers. The