public, advertised sale of the property it brought only the sum of nine thousand five hundred dollars, reached the conclusion that this price was fair and adequate. Its conclusion in this regard is based upon ample evidence, and with it we have no power or disposition to interfere.

The order is affirmed.

Zook, J., pro tem., and Beasly, 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 June 6, 1918.

[Civ. No. 2388. First Appellate District.-April 10, 1918.] SHERMAN HARDING, Respondent, v. F. H. DAM et al., Appellants.

MORTGAGE-RENEWAL THROUGH ATTORNEY FOR MORTGAGEE-AGENCYBREACH BY ATTORNEY AS DEFENSE TO FORECLOSURE.-Where a mortgagor, upon threatened foreclosure proceedings, sent a new note and mortgage to the mortgagee's attorney with instructions to deliver them to the mortgagee upon receipt of the outstanding note and a duly acknowledged satisfaction of the mortgage, the attorney became the mortgagor's agent for their delivery, and the mortgagor cannot, in a foreclosure action upon the new mortgage, set up as a defense the failure of the attorney to obtain the old note and satisfaction of the old mortgage.

ID. CONSIDERATION FOR NEW OBLIGATION.-Where the new note and mortgage were delivered without surrender of the old note and acknowledged satisfaction of the outstanding mortgage, the mortgagee's acceptance of the new note and mortgage amounted to an extinguishment of the old obligation, and constituted a valuable consideration for the new obligation.

APPEAL from a judgment of the Superior Court of Contra Costa County. R. H. Latimer, Judge.

The facts are stated in the opinion of the court.

F. H. Dam, in pro. per., for Appellants.

Richard Belcher, for Respondent.

KERRIGAN, J.-This is an appeal from a judgment of foreclosure of a mortgage dated June 27, 1913, alleged to have been executed by the defendant F. H. Dam in favor of the plaintiff to secure payment of a promissory note of the same date for $8,507.68, payable to the plaintiff on or before two years thereafter, and alleged to have been made by both of the defendants.

The conclusion we have reached on the merits of the case renders a consideration of the preliminary motion made by plaintiff to dismiss the appeal unnecessary.

Briefly stated, the history of the case is this: In the year 1904 defendant F. H. Dam purchased a parcel of real property from the plaintiff, giving in payment therefor his promissory note for five thousand two hundred dollars secured by mortgage on the property. Three years later, Dam having failed to pay any portion of the principal thereof or interest thereon, he gave to plaintiff a new note for $6,074 and a new mortgage. Six years later, Dam still having paid nothing on his said indebtedness, plaintiff demanded payment, and notified him that unless a settlement was made foreclosure proceedings would be commenced. Thereupon Dam sent to the plaintiff a new note and mortgage in the amount of the principal and interest then due. This note was unsatisfactory to the plaintiff and he refused to accept it. Later, after considerable negotiation, plaintiff agreed with Dam that he would accept a note executed by him and his mother, secured by a mortgage on the property described in the complaint. Thereafter, having secured the signature of his mother to such a note, Dam sent it together with the mortgage to one Ray Manwell, who was the attorney for plaintiff, with instructions to deliver them to the plaintiff upon receipt by him for Dam of the outstanding note and a duly acknowledged satisfaction of the mortgage which had been given to secure the same. These instructions, however, it seems were not strictly carried out by Manwell, with the result that while plaintiff received the present note and mortgage, Dam has never received back the prior note, nor was the satisfaction of mortgage which he did receive acknowledged.

Upon these facts the defendants allege in their answer, and now contend, that there was no delivery of the note and mortgage in suit, and that the same are wholly without consideration.

While it appears, as just stated, that Manwell was the attorney for plaintiff, nevertheless it must be held upon the facts related that he was also in effect the agent of the defendants for the purpose of making delivery of the note and mortgage; and the record failing, as it does, to show that plaintiff ever knew or was advised of the condition under which Manwell was to make delivery of the documents, we entertain no doubt that the breach of the condition by Manwell, defendants' agent, is no defense to the action under the circumstances of this case. The record is silent as to why the previous note was not returned, and no reason or object has been suggested why plaintiff should have retained it. Its retention was probably an inadvertence, as doubtless was a clerical error in the satisfaction of mortgage, and the failure to acknowledge the same. Moreover, although Dam must have known that the present note and mortgage had been delivered, it appears that he made no serious complaint concerning the failure of the plaintiff to return the prior instruments until the present note became due and this action was commenced. We are of the opinion that the delivery of the documents was valid, and taken with the acceptance thereof by the plaintiff, amounted under the attending circumstances to an extinguishment of the prior obligation for which they were given in renewal, and that such extinguishment constituted a valuable consideration for the present note and mortgage.

There is no merit in defendants' position that plaintiff obtained these instruments through fraud or deceit, or in the claim that the findings of the court do not respond to the issues framed by the pleadings.

The judgment is affirmed.

Zook, J., pro tem., and Beasly, 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 June 6, 1918, and the following opinion then rendered thereon:

THE COURT.-In denying the petition for transfer we wish also to express our surprise and our disapprobation of some of the language used by appellants' counsel in his reference to the learned author of the opinion. He refers to

36 Cal. App.-48

the "so-called history of the case thrust to the front" by the justice who wrote the opinion, and characterizes that history as being "quite as unjust as it is irrelevant." In another part of his petition counsel asserts that "the case narrated" by the learned author of the opinion "is not the case which arose between the parties," and he concludes the petition with the sentence: "Are we not entitled to have the truth told about our case?"

Even the zeal of advocacy can scarcely excuse such lan guage, yet we are unwilling to believe that counsel intended to reflect upon the sincerity and integrity of a member of the district court of appeal. For this reason we are not citing counsel for contempt, but are recording and reprehending his indiscretion as a warning to him and to others of the profession who, in the disappointment of defeat, may be tempted to forget the proprieties and the decencies of practice and to give vent to unjust reflections which in calmer moments they would not think of harboring or uttering.

[Civ. No. 2525. Second Appellate District.-April 10, 1918.] P. FARRELL, Appellant, v. CITY OF ONTARIO (a Municipal Corporation), et al., Respondents.

MUNICIPAL CORPORATIONS IMPROVEMENT OF STREET DRAIN FOR SURFACE WATERS-DAMAGE TO PRIVATE PROPERTY-LIABILITY OF CITY. A municipal corporation may be enjoined by a property owner from maintaining a paved street in a condition which will make the same a watercourse for surface waters in time of storm and rainfall, instead of a street for traffic, whereby the owner's land will be gullied and have deposited thereon large quantities of silt, sand, and various kinds of debris, even though the paving of the street was completed before the action for the injunction was commenced. INJUNCTION-CONTINUING TRESPASS.-An injunction against a continuing trespass will not be denied merely because acts of trespass actually have been accomplished.

APPEAL from a judgment of the Superior Court of San Bernardino County. H. T. Dewhirst, Judge.

The facts are stated in the opinion of the court.

Joseph Scott, A. S. Maloney, and A. G. Ritter, for Appellant.

Archie D. Mitchell, for Respondents.

CONREY, P. J.-The plaintiff appeals from the judgment, which was entered after an order sustaining a general demurrer to the amended complaint, which complaint the plaintiff refused to amend.

As shown by the complaint, the plaintiff is the owner of real property which lies immediately south of and adjacent to the city limits of the city of Ontario. For a number of years prior to the acts complained of in the complaint there has been, and now is, in the city of Ontario a street known as San Antonio Avenue, extending south from the northerly city limits and having its southerly terminus at the junction. of plaintiff's property and the southerly limits of the city. The city of Ontario, on or about August 1, 1916, passed an ordinance and awarded a contract for the paving of San Antonio Avenue south from a point about one and one-half miles north of the junction of plaintiff's property with the southerly boundary of the city. Pursuant to these proceedings the defendants caused San Antonio Avenue to be excavated below its former level and thereby brought that avenue to a lower level than the land through which the avenue runs. By so excavating the defendants increased the fall along the avenue from north to south to a considerable extent. By each and all of said acts the defendants have made of San Antonio Avenue a watercourse and a drain which will inevitably collect and carry great volumes of surface water in time of storm and rainfall and pour said water in immense quantities upon the plaintiff's property in augmented and accelerated volume, and will bring great quantities of said surface water upon plaintiff's land which would not have reached said land under natural conditions or if San Antonio Avenue had been graded, paved, and curbed in a proper manner. The defendants have made no provisions of any kind for carrying off said surface water, which will be collected by and be diverted into said avenue through the acts of the defendants, and which by reason of said acts will flow down said avenue to and upon the plaintiff's real property to the great injury and damage thereof. There are various dirt roads and streets running east and west in the city of