The legislature has full authority to extend the operation of the statute to all corporations, companies, masters, or employers of every occupation or business. It has not seen fit to do so. It might very properly have extended the operation of the statute to all partnerships, masters, or others engaged in the work of operating trains upon railroads, or in constructing railroads, or other like work. It has not done so. In various opinions of this court, we have frequently held that the statute applied to persons engaged in the hazardous work of operating trains upon a railroad, but, in all those cases, we had reference to the employes of a railroad company organized in this state, or of a railroad company doing business in this state. Railway Co. v. Haley, 25 Kan. 35; Railway Co. v. Mackey, 33 Kan. 298, 6 Pac. Rep. 291; Bucklew v. Railway Co., 21 N. W. Rep. 103.

Again, we have held that when a railroad is being constructed, and is in the exclusive possession of and operated by a contractor for its construction, and the railroad company, at the time the injuries complained of are committed, has no control thereof, such company is not liable for the damages resulting from the operation of such railroad. Railway Co. v. Fitzsimmons, 18 Kan. 34; Railroad Co. v. Willis, 38 Kan. 330, 16 Pac. Rep. 728. If the statute of 1874 were extended so as to include the firm of Beeson & Selden and their employes, it must also be extended so as to include every firm, partnership, contractor, or private person having serv ants or employes at work on the track, or in the yard, of a railroad company. Trust Co. v. Thomason, 25 Kan. 5; Railroad Co. v. Harris, 33 Kan. 416, 6 Pac. Rep. 571; Railroad Co. v. Koehler, 37 Kan. 463, 15 Pac. Rep. 567. The statute does not go so far. The courts construe laws, but do not make them. The trial court attempted to fix a liability on Beeson & Selden under a statute which has no application to them as masters or employers; they not being a railroad company organized in this or any other state. The general rule is that he who engages in the employment of another for the performance of specified duties and services for compensation takes upon himself the natural and ordinary risks and perils incident to the performance of such services. The perils arising from the carelessness and negligence of those who are in the same employment are no exception to this rule. If Beeson & Selden used due diligence in the selection of competent and trusty servants, and furnished them with suitable means to perform the service in which they employed them, and did not retain negligent or incompetent servants, after knowledge or notice of their negligence or incompetency, they are not answerable to Busenbark, or any other employe, for any injury received by them, or either of them, in consequence of the carelessness of any co-servant or co-employe, while they were engaged in the same service. Outside of the statute, Beeson & Selden were required to assume the duty, towards their servants and employes, of exercising reasonable care and diligence in providing them with a reason

ably safe place at which to work, and also in furnishing them proper means or instrumentalities, such as engines, cars, oil, lights, etc., to work with. Railroad Co. v. Holt, 29 Kan. 152; Railroad Co. v. Moore, Id. 632; Railway Co. v. Fox, 31 Kan. 586, 3 Pac. Rep. 320; Railway Co. v. Weaver, 35 Kan. 434, 11 Pac. Rep. 408; Railway Co. v. Dwyer, 36 Kan. 69, 12 Pac. Rep. 352; Railroad Co. v. Wagner, 33 Kan. 660, 7 Pac. Rep. 204; Railroad Co. v. McKee, 37 Kan. 592, 15 Pac. Rep. 484. As the instruction complained of did not place the liability of Beeson & Selden upon the duty of master and servant under the common law, but solely upon a statute which has no application to them, and applies only to railroad companies organized in this state, and to railroad companies doing business in this state, the case was not correctly submitted to the jury. The judgment of the district court must be reversed. All the justices concurring.

(86 Cal. 594) STONESIFER et al. v. ARMSTRONG, Judge. (No. 13,989.)

(Supreme Court of California. Dec. 4, 1890.) MANDAMUS-BILL OF EXCEPTIONS-SETTLEMENT.

A judge of the superior court, who has exercised his discretion in refusing to settle a bill of exceptions not presented to him within the time prescribed by law, owing to the mistake or excusable neglect of appellant's attorneys, cannot be compelled so to do by writ of mandate, conceding that he has the power to relieve against such mistake under Code Civil Proc. Cal. § 473, which confers on the superior court discretionary power to relieve a party from a "judgment, or der, or other proceeding" taken against him through his mistake or excusable neglect.

In bank. Application for writ of mandamus.

Edward J. Pringle and Stonesifer & Minor, for petitioner. William Matthews and Wright & Hazen, for respondents.

PER CURIAM. This is an application for a writ of mandate to compel the respondent to settle a bill of exceptions in a case tried before him in Stanislaus county entitled "Stonesifer et als. vs. Kilburn et als." The bill was not presented to the judge for settlement within the time prescribed by law, or by any order or stipulation extending the same. Upon presentation, although the judge found, and in his order certified, that the same was not served in time by reason of the mistake, inadvertence, and excusable neglect of one of the attorneys of the plaintiffs who had charge of the matter, he sustained the objection of the other party to the settlement thereof, on the ground that the same was not served in time, and that he had no power to relieve the party from such mistake, inadvertence, and neglect, and refused to settle the bill. In Bunnel v.. Stockton, 83 Cal. 320, 23 Pac. Rep. 301, this court, in bank, said: "The moving party must prepare and serve his statement within the time allowed by law for that purpose, or it cannot be settled, or, if settled, cannot be considered, either at the hearing of the motion or on appeal to this court. The same rule of law. in this regard, applies to bills of exceptions as to

statements. When the objection was interposed in the court below, the plaintiff, upon notice and affidavits, moved to be relieved from the objection on the ground of mistake, inadvertence, surprise, and excusable neglect, and it was upon the hearing of that motion that the order was made, and the settlement of the bill refused. Assuming that the court has the power to grant this relief, under section 473, Code Civil Proc., 1 (which, however, we do not now decide, for we do not think the case a proper one in which to determine the same,) whether it shall do so or not is a matter resting in the discretion of the court. We cannot command what its action shall be. At most, we could only command it to act. It has already done so. If there was error or abuse of discretion in its action, the same may be reviewed on appeal, but we cannot reverse its action by mandate. The writ must be denied.

(86 Cal. 589)

TAYLOR V. BLACK DIAMOND COAL MIN. CO. (No. 12,965.)

(Supreme Court of California. Dec. 4, 1890.)

ATTORNEY'S CONTRACT-ASSIGNMENT.

The principle that an attorney cannot assign a contract for his services, and substitute another attorney in his place, without the client's consent, has no application where the attorney has practically rendered all the services he contracted to do before the assignment was made; and in such a case the assignment of the contract is valid, being substantially the assignment of a debt due.

Department 2. Appeal from superior court, city and county of San Francisco; T. K. WILSON, Judge.

W. H. L. Barnes, for appellant. Wm. M. Pierson, for respondent.

MCFARLAND, J. This action was brought by plaintiff, as assignee of Hoyt & McKee, attorneys at law, to recover from defendant a balance due for professional services. Judgment went for plaintiff in the court below, from which, and from an order denying a new trial, defendant appeals. Hoyt & McKee made a contract with defendant by which they were to receive a certain compensation for their services as attorneys, provided they should accomplish certain results. Afterwards McKee, as surviving member of the firm of Hoyt & McKee, (Hoyt having died before the services were quite all rendered,) assigned to the plaintiff Taylor all the right and title of said firm in said contract, and all the moneys due or to become due thereunder. Appellant contends that the assignment was invalid upon the ground that an attorney cannot assign a contract for his services, and substitute another attorney in his place, without the consent of his client, such contract being special, and founded upon personal qualities. The general principle thus invoked is no doubt sound, but we do not

1Code Civil Proc. Cal. § 473, provides that the court may, in its discretion, relieve a party from "a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. "

think that it applies to the case at bar. A careful examination of the pleadings, the evidence, and the findings shows that the services which Hoyt and McKee promised to render, and the ends which they agreed to accomplish, were all practically rendered and accomplished before the assignment to plaintiff; and that appellant had received the full benefit of those services and the accomplishment of those ends before said assignment. The assignment, therefore, was substantially the assignment of a debt due. The judgment and order are affirmed.

PERKINS V. WAKEHAM. (No. 13,670.) (Supreme Court of California. Dec. 3, 1890.) QUIETING TITLE-SERVICE BY PUBLICATION-V▲ LIDITY OF JUDGMENT.

A judgment, in an action to quiet title, is binding against a non-resident defendant, who does not appear or answer, and who is served by publication only while absent from the state, under Code Civil Proc. Cal. §§ 412, 413, providing that where a person on whom service is to be made resides out of the state, or has departed from the state, and the fact appears by atidavit to the satisfaction of the court, and it also appears that a cause of action exists against such person, such court may order that the service be made by publication of the summons.

Department 1. Appeal from superior court, Los Angeles county; W. P. GARDINER, Judge.

Wells, Guthrie & Lee, for appellant. Victor Montgomery, J. W. Towner, and A. W. Hutton, for respondent.

PATERSON, J. The appeal from the order denying the motion for a new trial, so far as it affects the respondent, town of Santa Ana, must be dismissed. The notice of intention to move for a new trial was not served on said respondent. There but the attorney upon whom it was served was an attempt to serve the statement, had no authority to accept service, which fact was known to appellant at the time of service. The motion of respondent, the from the order denying a town of Santa Ana, to dismiss the appeal new trial is granted, and said appeal, in so far as it affects said respondent, is dismissed. A motion was made on various grounds, also, to dismiss the appeal from the judgment, but as the findings support the judg ment, and no error appears on the face of the roll, we deem it best not to pass on the motion to dismiss, but to affirm the

judgment. The court found that in a former action, brought by Wakeham against Perkins and others to determine all adverse claims to the property described in the complaint herein, judgment was entered in favor of said Wakeham, defendant herein, adjudging him to be the appellant that the decree in the former acowner of the property. It is claimed by tion to quiet title is in personam, and not in rem, and that as the service of summons was by publication while he was absent from the state, and as he did not answer or appear, the judgment is void. If it be true that a state has no power by

statute to provide for the determination of adverse claims to real estate lying within its limits, as against non-resident claimants, who can be brought into court only by publication; if the state in her sovereignty is impotent to protect the title of citizens to her soil against the asserted claims of non-residents, who will not voluntarily submit their claims to her courts for adjudication,-great evil must result. Certainty and security in the titles of real estate, and convenient and effective procedure for the determination of individua rights in such property, are essential to the prosperity of the community. If those who cannot be reached by the process of the courts may assert adverse claims to real estate, and hold unlawful clouds over the title of the owner, every homestead and lot in the state may have a cloud cast upon it for all time. We do not think that a sovereign state is so limited in its power. The state is paramount in power over all things real within its territorial boundaries, except so far as its authority is limited by the constitution and laws of the United States; and the courts of the state, acting within that limitation, have and may exercise all the jurisdiction over all persons and things which the constitution and laws of the state confer upon them. The manner of obtaining such jurisdiction, and the procedure for its exercise, are matters of state legislation. The legislature of this state has provided that: "An action may be brought by any person 'against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim." Section 738, Code Civil Proc. It has also provided: "Where the person on whom the service is to be made resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons, or is a foreign corporation, having no managing or business agent, cashier, or secretary within the state, and the fact appears by affidavit to the satisfaction of the court, or a judge thereof, and it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such court or judge may make an order that the service be made by the publication of the summons. The order must direct the publication to be made in a newspaper, to be designated, as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week; but publication against a defendant residing out of the state, or absent therefrom, must not be less than two months." Sections 412, 413, Id. Unless the method of giving notice above prescribed is unreasonable, or is in conflict with some provision of the constitution or principle of natural justice, it cannot he held invalid. In determining the question of its validity, the nature of the action and the effect of the judgment must be considered. While it is true, as a general proposition, that an action to quiet title is an action in equity,

which acts upon the person, it is also true that the state has power to regulate the tenure of immovable property within its limits, the conditions of its ownership, and the modes of establishing the same, whether the owner be citizen or stranger. U. S. v. Fox, 94 U. S. 315. While a decree quieting title is not in rem, strictly speaking, it fixes and settles the title to real estate, and to that extent certainly partakes of the nature of a judgment in rem. But it is not necessary, in support of a judgment in such an action, where service has been had by publication, to determine the question whether it is a judgment in personam or one in rem. This precise point has recently been decided by the supreme court of the United States. Mr. Justice BREWER, speaking for the court, said: "The question is not what a court of equity, by virtue of its general powers, and in the absence of a statute, might do, but it is what jurisdiction has a state over titles to real estate within its limits, and what jurisdiction may it give by statute to its own courts to determine the validity and extent of the claims of non-residents to such real estate?" Arndt v. Griggs, 134 U. S. 320, 10 Sup. Ct. Rep. 557. There the power of the state to quiet title as against non-residents by constructive service is upheld, and the cases upon which appellant herein chiefly relies are fully considered and elaborately reviewed. In that case, it is true, the statute of the state of Nebraska, which was under consideration, expressly provided for service by publication "in actions which relate to, or the subject of which is, real or personal property in this state, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding him from any interest therein, and such defendant is a non-resident of the state or foreign corporation," but the authority conferred by the legislature of this state in section 412, supra, is as great as that given by the Nebraska statute. While our statute is general, and in terms applies to all actions, it is not invalid because it includes in its provisions proceedings purely in personam. If the judgment in the action of Wakeham is valid and binding,-and we hold that it is,-other questions raised by appellant need not be noticed. The judg ment and order are affirmed.

We concur: Fox, J.; Works, J.

(86 Cal. 574)

CUTTING PACKING CO. v. PACKERS' EXCHANGE. (No. 12,337.)

(Supreme Court of California. Dec. 2, 1890.) ASSIGNMENT-RIGHT OF ASSIGNOR.

While the assignment, by the purchaser, of a contract for the purchase of fruit at a specified rate will not relieve him from his obligation to the seller, who has not consented to the assignment, as provided by Civil Code Cal. § 1457, yet, as between the purchaser and his assignee, the latter is bound to receive and pay for the fruit, under section 1589, which provides that "a voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it;" and the purchaser, who paid the seller the full contract price for the fruit on

his assignee's refusal to accept it, and who then sold it in the open market at a loss, is entitled to recover the difference from his assignee.

In bank. Appeal from superior court, city and county of San Francisco; T. H. REARDEN, Judge.

Action by the Cutting Packing Company against the Packers' Exchange of California for refusal to accept fruit under a contract assigned by plaintiff to defendant. There was a judgment for plaintiff, and defendant appeals. Civil Code Cal. § 1457, provides: "The burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not otherwise.

Olney,

A. N. Drown, for appellant. Chickering & Thomas, for respondent.

WORKS, J. This appeal is brought here on the judgment roll, which includes a bill of exceptions, from a judgment rendered in favor of plaintiff in an action for damages for breach of contract, tried before the court without a jury. In September, 1881, the plaintiff and one William C. Black wood made the following contract of purchase and sale:

"San Francisco, September 17, 1881. Bought of W. C. Blackwood his crop of apricots, at Haywards, for the seasons of 1882, 1883, 1884, 1885, and 1886, not less than seventy-five tons, and not exceeding two hundred tons, per aunum, at three cents per pound f. o. b. Haywards. CUTTING PACKING COMPANY. By A. D. CUTTER."

"San Francisco, September 17, 1881. Sold Cutting Packing Company my crop of apricots, at Haywards, for the seasons of 1882, 1883, 1884, 1885, and 1886, not less than seventy-five tons, and not exceeding two hundred tons, per annum, at three cents per pound f. o. b. Haywards. WM. C. BLACKWOOD.

Plaintiff assigned its interest in the contract to the defendant about March 15, 1882, but Blackwood refused to accept the defendant in place of plaintiff. Blackwood, between July 10 and August 15, 1884, in performance of the contract upon his part, delivered to plaintiff, in different lots, 235,693 pounds of apricots, which the plaintiff, from time to time as they were delivered to it, tendered to the defendant, which refused to accept or pay for each or any lot so tendered. Plaintiff, as each lot was refused, placed it on sale in open market, and realized from the whole, after the cost of freight and seller's commissions were deducted, the net sum of $4,770.50. This sum was $2,300.29 less than the amount it was compelled to pay Black. wood. The two papers above set forth were construed in Blackwood v. Packing Co., 76 Cal. 212, 18 Pac. Rep. 248, to be a contract of purchase and sale. It was a non-negotiable contract in character, but, under section 1459, Civil Code, it could be transferred by indorsement the same as a negotiable instrument. "Such indorsement," the same section further provides, "shall transfer all the rights of the assignor under the instrument to the assignee, subject to all equities and defenses existing in favor of the maker at the time of the indorsement." But the burden of the obligation that rested upon the plain- |

tiff-that is to say, to pay to Blackwood three cents per pound for any quantity of apricots between 75 tons and 200 tons for the seasons specified in the contractcould not be transferred without the consent of Blackwood. Civil Code, § 1457. And, as he refused to consent to a novation by accepting the defendant in place of plaintiff, so as to release the latter, which he might have done, (Id. § 1531, subd. 2,) the relations of himself and the plaintiff as to such burden were not affected by the assignment of the contract. Section 1457 is only intended to protect the party to be benefited from the effects of an assignment of an obligation. So far as the parties to this suit are concerned, the appellant contracted with the respondent to accept and pay for the fruit Blackwood had contracted to deliver to the latter. It could make no difference, therefore, whether the fruit was delivered to the appellant by Blackwood directly, or by the respondent. As between the parties to this suit, the appellant was bound to receive and accept the fruit, and it cannot relieve itself from this obligation by showing that Blackwood had refused to relieve the respondent from its obligation to him. As the fruit contracted to be sold was to be the product of trees presumably owned by Blackwood at the time the contract was made, it must be considered as having had a potential existence at that time, and was therefore subject to sale. Arques v. Wasson, 51 Cal. 620. This being so, although the contract was construed in Blackwood v. Packing Co., supra, as not having passed the legal title to the fruit before the same was delivered, the plaintiff here at least acquired the right to purchase the fruit, and the assignment of the contract transferred such right to the defendant, whereby it became alone entitled to purchase the fruit for each of the seasons that occurred subsequent to the assignment. Myers v. Water Co., 10 Cal. 579. Now, while the plaintiff was not released, as we have seen, from the burden of the contract by the assignment of it, yet when the defendant took the right to purchase the fruit, which was the benefit of the contract, it also assumed the burden of paying for the fruit, in accordance with the following principle of section 1589, Civil Code: "A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting." The obligation thus assumed was apparent on the face of the contract. We therefore think it plain that as the plaintiff, as assignor, was still bound to Blackwood to pay the price stipulated in the contract, notwithstanding the assignment, and as the defendant, as assignee, assumed such obligation, the plaintiff, as between it and the defendant, stood in the nature of a surety for the latter for the performance of the obligation. If this be correct, it then follows that from the assignment an implied contract arose between the plaintiff and defendant, whereby the latter became bound to the former to receive and pay for the apricots, according to the terms of the original contract. This is,

we think, the proper construction of section 1457 of the Civil Code, under which the assignment of the non-negotiable contract in question was made. Although the liability of an assignee to his assignor under that section has never been determined by this court, still we are fortified in our conclusion by the analogous doctrine prevailing in the state of Ohio, where a similar liability arises upon the transfer of shares of the capital stock of a corporation. There, as in this state, the transferrer of shares by constitutional and statutory provisions continues liable to the creditors of the corporation, who became such while the transferrer held the shares. And in the recent case of Harpold v. Stobart, 21 N. E. Rep. 637, the supreme court of the state stated the doctrine under such provisions thus: "In construing these provisions, the holdings in this state are to the effect that the individual liability of stockholders attaches in favor of creditors at the time the debt is contracted, or the liability incurred by the corporation, and that such liability is not discharged by the subsequent assignment or transfer of the stock; but the successive assignees impliedly undertake to indemnify or discharge the assignor from the liability which attached to him while he held the stock." See, also, 2 Mor. Priv. Corp. §§ 879. 888. This doctrine, it seems to us, is just and reasonable, because, if the transferee should be insolvent, the creditors of the corporation whose claims attached while the transferrer held the shares would not be affected by the transfer; while, on the other hand, if the transferrer, after the transfer, pays his proportion of any indebtedness of the corporation that he was liable for, such payment certainly adds that much to the value of the stock he transferred, and the transferee should reimburse him for the outlay. This last consideration would not apply in Ohio with the same force as in this state, for it appears, in Harpold v. Stobart, supra, that the liability of stockholders “is not a primary fund or resource for the payment of the debts of the company, but is collateral to the principal obligation which rests on the corporation, and is to be resorted to only in case of the insolvency of the corporation, or where payinent can. not be enforced by ordinary process. But in this state, such liability is a primary fund or resource to which creditors of a corporation may resort, regardless of the solvency of the corporation. Morrow v. Superior Court, 64 Cal. 383, 1 Pac. Rep. 354, and Mitchell v. Beckman, 64 Cal. 117. It is clear that a breach of the implied contract, thus created, between the parties here, was made when the defendant refused to accept and pay for the crop of 1884; and the plaintiff, upon the breach being so made, having stepped in and received and paid for the crop pursuant to the original contract, as it was obliged to do, thereby acquired the right to recover, as damages, from the defendant, the difference between the price paid under the contract to Blackwood and that realized from the sale of the fruit in open market at current rates. As the solution of this question is decisive of this appeal, we

do not deem it necessary to discuss the other points made by the appellant, but will add that we discover no error in the record. Judgment affirmed.

We concur: PATERSON, J.; Fox, J.; SHARPSTEIN, J.; THORNTON, J.

(86 Cal. 591) WOLVERTON V. BAKER et al. (No. 13,766.) (Supreme Court of California. Dec. 4, 1890.) RES ADJUDICATA.

1. A judgment to the effect that a conveyance of land by a mother to her son was free and clear of any condition for the mother's support and maintenance, though palpably erroneous on the facts found, is a bar to another action between the same parties for a relitigation of the matters determined by such judgment.

2. In California, where both law and equity are administered by the same court, and where a party may have any relief called for by the case made by his complaint, whatever he may have denominated his suit, a decree in equity may, in a proper case, be pleaded in bar to a subsequent action at law.

Commissioners' decision. Department 2. Appeal from superior court, Humboldt county; G. W. HUNTER, Judge.

J. H. G. Weaver and E. W. Wilson, (John F. Crowe, of counsel,) for appellant. J. D. H. Chamberlin, for respondents.

HAYNE, C. This was a suit for a reconveyance of real property conveyed by a woman over 70 years of age to her son, Erastus J. Baker, upon condition that he would apply to her support and maintenance so much of the rents and profits as should be sufficient to support and maintain her in a suitable manner during the rest of her life, and for the cancellation of certain deeds and mortgages made by the son, and a homestead declared by him. The trial court gave judgment for the defendants, and the plaintiff appeals upon the findings.

The findings show that the conveyance was without consideration, and upon the condition mentioned; that, for nearly two years before the commencement of the suit, the son has not applied any portion of the rents and profits to the support of his mother; that he declared a homestead upon the property, and conveyed half of it to other persons without consideration; and that he mortgaged it, "with the intent, on his part, to prevent the plaintiff from recovering anything from him." If these were the only facts, we should have no doubt of the right of the plaintiff to the relief she seeks, upon the ground of the breach of the condition, without reference to the other grounds alleged in the complaint. See Blake v. Blake, 56 Wis. 392, 14 N. W. Rep. 173; Humphrey v. West, 40 Mich. 597; Civil Code, § 1109. But the defendants have pleaded a judgment obtained in a former suit between the same parties, and we are constrained to say that, in our opinion, it is a bar to the present suit. The substance of the grounds of relief alleged in the complaint in the former suit are as follows: (1) That the plaintiff reposed confidence in her son. (2) That she was old and infirm. (3) That the property was conveyed "upon the sole