laid down rule in California

1959Co., 163 Cal. 298 [ 125 P. 242 ], the court laid down the rule, that in construing a contract limiting the liability of a telegraph company for errors in transmission of messages, any uncertainty would be interpreted most strongly against the telegraph company.

1959Co., 163 Cal. 298 [ 125 P. 242 ], the court laid down the rule, that in construing a contract limiting the liability of a telegraph company for errors in transmission of messages, any uncertainty would be interpreted most strongly against the telegraph company.

1958If a case is necessary to support such an obvious rule it is to be found in Schwaegler Co. v. Marchesotti, 88 Cal.App.2d 738 [ 199 P.2d 331 ], where the court laid down the rule by quoting from Bissell v. King, 91 Cal.App. 420 , as follows (p. 743) [ 267 P. 356 ]: “ ‘. . .

1958If a case is necessary to support such an obvious rule it is to be found in Schwaegler Co. v. Marchesotti, 88 Cal.App.2d 738 [ 199 P.2d 331 ], where the court laid down the rule by quoting from Bissell v. King, 91 Cal.App. 420 , as follows (p. 743) [ 267 P. 356 ]: “ ‘. . .

1958If a case is necessary to support such an obvious rule it is to be found in Schwaegler Co. v. Marchesotti, 88 Cal.App.2d 738 [ 199 P.2d 331 ], where the court laid down the rule by quoting from Bissell v. King, 91 Cal.App. 420 , as follows (p. 743) [ 267 P. 356 ]: “ ‘. . .

1958If a case is necessary to support such an obvious rule it is to be found in Schwaegler Co. v. Marchesotti, 88 Cal.App.2d 738 [ 199 P.2d 331 ], where the court laid down the rule by quoting from Bissell v. King, 91 Cal.App. 420 , as follows (p. 743) [ 267 P. 356 ]: “ ‘. . .

1961Crofoot argues that Swall v. Anderson, 60 Cal.App.2d 825 [ 141 P.2d 912 ]; Fick v. Nilson, 98 Cal.App.2d 683 [ 220 P.2d 752 ]; and Roche v. Casissa, 154 Cal.App.2d 785 [ 316 P.2d 776 ], are in apparent disagreement in that in the Fick case the court laid down the rule that in order to entitle a plaintiff to treble damages there must be a showing that the defendant was guilty of a willingness to vex, harass, annoy or injure the plaintiff; but that in the Roche case, supra, there was no such showing and that the apparent rule there is that sufficient malice is shown if a wrongful injury was not

1961Crofoot argues that Swall v. Anderson, 60 Cal.App.2d 825 [ 141 P.2d 912 ]; Fick v. Nilson, 98 Cal.App.2d 683 [ 220 P.2d 752 ]; and Roche v. Casissa, 154 Cal.App.2d 785 [ 316 P.2d 776 ], are in apparent disagreement in that in the Fick case the court laid down the rule that in order to entitle a plaintiff to treble damages there must be a showing that the defendant was guilty of a willingness to vex, harass, annoy or injure the plaintiff; but that in the Roche case, supra, there was no such showing and that the apparent rule there is that sufficient malice is shown if a wrongful injury was not

1961Crofoot argues that Swall v. Anderson, 60 Cal.App.2d 825 [ 141 P.2d 912 ]; Fick v. Nilson, 98 Cal.App.2d 683 [ 220 P.2d 752 ]; and Roche v. Casissa, 154 Cal.App.2d 785 [ 316 P.2d 776 ], are in apparent disagreement in that in the Fick case the court laid down the rule that in order to entitle a plaintiff to treble damages there must be a showing that the defendant was guilty of a willingness to vex, harass, annoy or injure the plaintiff; but that in the Roche case, supra, there was no such showing and that the apparent rule there is that sufficient malice is shown if a wrongful injury was not

1961Crofoot argues that Swall v. Anderson, 60 Cal.App.2d 825 [ 141 P.2d 912 ]; Fick v. Nilson, 98 Cal.App.2d 683 [ 220 P.2d 752 ]; and Roche v. Casissa, 154 Cal.App.2d 785 [ 316 P.2d 776 ], are in apparent disagreement in that in the Fick case the court laid down the rule that in order to entitle a plaintiff to treble damages there must be a showing that the defendant was guilty of a willingness to vex, harass, annoy or injure the plaintiff; but that in the Roche case, supra, there was no such showing and that the apparent rule there is that sufficient malice is shown if a wrongful injury was not

1961Crofoot argues that Swall v. Anderson, 60 Cal.App.2d 825 [ 141 P.2d 912 ]; Fick v. Nilson, 98 Cal.App.2d 683 [ 220 P.2d 752 ]; and Roche v. Casissa, 154 Cal.App.2d 785 [ 316 P.2d 776 ], are in apparent disagreement in that in the Fick case the court laid down the rule that in order to entitle a plaintiff to treble damages there must be a showing that the defendant was guilty of a willingness to vex, harass, annoy or injure the plaintiff; but that in the Roche case, supra, there was no such showing and that the apparent rule there is that sufficient malice is shown if a wrongful injury was not

1961Crofoot argues that Swall v. Anderson, 60 Cal.App.2d 825 [ 141 P.2d 912 ]; Fick v. Nilson, 98 Cal.App.2d 683 [ 220 P.2d 752 ]; and Roche v. Casissa, 154 Cal.App.2d 785 [ 316 P.2d 776 ], are in apparent disagreement in that in the Fick case the court laid down the rule that in order to entitle a plaintiff to treble damages there must be a showing that the defendant was guilty of a willingness to vex, harass, annoy or injure the plaintiff; but that in the Roche case, supra, there was no such showing and that the apparent rule there is that sufficient malice is shown if a wrongful injury was not

1960(Hicks v. Drew (1897), 117 Cal. 305 [ 49 P. 189 ] ; Berry v. Bank of Bakers field (1918), 177 Cal. 206 [ 170 P. 415 ].) According to section 580 of the Code of Civil Procedure, the court, in a ease in which an answer is filed, may “grant [the plaintiff] any relief consistent with the case made by the complaint and embraced within the issue. ” In Bank of America National Trust & Savings Assn. v. Gillett (1940), 36 Cal.App.2d 453 [ 97 P.2d 875 ], the court laid down the principle that, “. . . forms of pleading are of no importance if the pleading in substance states the facts showing the relief

1960(Hicks v. Drew (1897), 117 Cal. 305 [ 49 P. 189 ] ; Berry v. Bank of Bakers field (1918), 177 Cal. 206 [ 170 P. 415 ].) According to section 580 of the Code of Civil Procedure, the court, in a ease in which an answer is filed, may “grant [the plaintiff] any relief consistent with the case made by the complaint and embraced within the issue. ” In Bank of America National Trust & Savings Assn. v. Gillett (1940), 36 Cal.App.2d 453 [ 97 P.2d 875 ], the court laid down the principle that, “. . . forms of pleading are of no importance if the pleading in substance states the facts showing the relief

1960(Hicks v. Drew (1897), 117 Cal. 305 [ 49 P. 189 ] ; Berry v. Bank of Bakers field (1918), 177 Cal. 206 [ 170 P. 415 ].) According to section 580 of the Code of Civil Procedure, the court, in a ease in which an answer is filed, may “grant [the plaintiff] any relief consistent with the case made by the complaint and embraced within the issue. ” In Bank of America National Trust & Savings Assn. v. Gillett (1940), 36 Cal.App.2d 453 [ 97 P.2d 875 ], the court laid down the principle that, “. . . forms of pleading are of no importance if the pleading in substance states the facts showing the relief

1960(Hicks v. Drew (1897), 117 Cal. 305 [ 49 P. 189 ] ; Berry v. Bank of Bakers field (1918), 177 Cal. 206 [ 170 P. 415 ].) According to section 580 of the Code of Civil Procedure, the court, in a ease in which an answer is filed, may “grant [the plaintiff] any relief consistent with the case made by the complaint and embraced within the issue. ” In Bank of America National Trust & Savings Assn. v. Gillett (1940), 36 Cal.App.2d 453 [ 97 P.2d 875 ], the court laid down the principle that, “. . . forms of pleading are of no importance if the pleading in substance states the facts showing the relief

1960(Hicks v. Drew (1897), 117 Cal. 305 [ 49 P. 189 ] ; Berry v. Bank of Bakers field (1918), 177 Cal. 206 [ 170 P. 415 ].) According to section 580 of the Code of Civil Procedure, the court, in a ease in which an answer is filed, may “grant [the plaintiff] any relief consistent with the case made by the complaint and embraced within the issue. ” In Bank of America National Trust & Savings Assn. v. Gillett (1940), 36 Cal.App.2d 453 [ 97 P.2d 875 ], the court laid down the principle that, “. . . forms of pleading are of no importance if the pleading in substance states the facts showing the relief

1960(Hicks v. Drew (1897), 117 Cal. 305 [ 49 P. 189 ] ; Berry v. Bank of Bakers field (1918), 177 Cal. 206 [ 170 P. 415 ].) According to section 580 of the Code of Civil Procedure, the court, in a ease in which an answer is filed, may “grant [the plaintiff] any relief consistent with the case made by the complaint and embraced within the issue. ” In Bank of America National Trust & Savings Assn. v. Gillett (1940), 36 Cal.App.2d 453 [ 97 P.2d 875 ], the court laid down the principle that, “. . . forms of pleading are of no importance if the pleading in substance states the facts showing the relief

1960The leading case is Mox Incorporated v. Woods, 202 Cal. 675 [ 262 P. 302 ], where the court laid down the rule as follows: "The cause of action is the damage suffered. . . .

1960The leading case is Mox Incorporated v. Woods, 202 Cal. 675 [ 262 P. 302 ], where the court laid down the rule as follows: "The cause of action is the damage suffered. . . .

1959Code, § 1572; McMahon v. Grimes, 206 Cal. 526 [ 275 P. 440 ].) In Harris v. Miller, 196 Cal. 8 [ 235 P. 981 ], the court laid down the rule as follows: “It is the general and well-settled rule that when a representation concerning the subject matter of a transaction which might, ordinarily, be only the expression of an opinion is asserted as an existing fact, material to the transaction, aud which has a reasonable tendency to induce one of the parties to the transaction to consider and rely upon such representation as a fact, the statement then becomes an assertion of an existing fact within t

1959Code, § 1572; McMahon v. Grimes, 206 Cal. 526 [ 275 P. 440 ].) In Harris v. Miller, 196 Cal. 8 [ 235 P. 981 ], the court laid down the rule as follows: “It is the general and well-settled rule that when a representation concerning the subject matter of a transaction which might, ordinarily, be only the expression of an opinion is asserted as an existing fact, material to the transaction, aud which has a reasonable tendency to induce one of the parties to the transaction to consider and rely upon such representation as a fact, the statement then becomes an assertion of an existing fact within t

1959Code, § 1572; McMahon v. Grimes, 206 Cal. 526 [ 275 P. 440 ].) In Harris v. Miller, 196 Cal. 8 [ 235 P. 981 ], the court laid down the rule as follows: “It is the general and well-settled rule that when a representation concerning the subject matter of a transaction which might, ordinarily, be only the expression of an opinion is asserted as an existing fact, material to the transaction, aud which has a reasonable tendency to induce one of the parties to the transaction to consider and rely upon such representation as a fact, the statement then becomes an assertion of an existing fact within t

1959Code, § 1572; McMahon v. Grimes, 206 Cal. 526 [ 275 P. 440 ].) In Harris v. Miller, 196 Cal. 8 [ 235 P. 981 ], the court laid down the rule as follows: “It is the general and well-settled rule that when a representation concerning the subject matter of a transaction which might, ordinarily, be only the expression of an opinion is asserted as an existing fact, material to the transaction, aud which has a reasonable tendency to induce one of the parties to the transaction to consider and rely upon such representation as a fact, the statement then becomes an assertion of an existing fact within t

1947In San Diego Savings Bank v. Goodsell, 137 Cal. 420 [ 70 P. 299 ], the court laid down the rule that for purposes of publication of summons under sections 412 and 413 of the Code of Civil Procedure, “residence” meant an actual residence as distinguished from domiciliary residence.

1947In San Diego Savings Bank v. Goodsell, 137 Cal. 420 [ 70 P. 299 ], the court laid down the rule that for purposes of publication of summons under sections 412 and 413 of the Code of Civil Procedure, “residence” meant an actual residence as distinguished from domiciliary residence.

1941In Bryant v. Whitney, 178 Cal. 640 [ 174 Pac. 32 ], the court laid down this rule: “ ‘Where there has been no uniform observance of the restrictions and substantially all the landowners have so eon- *650 ducted themselves as to indicate an abandonment of the right, which is in the nature of an easement, to have the neighborhood kept to the standard established by the original plan, and where the enforcement will not tend materially to restore to the district the character imposed upon it by the scheme, and the infraction complained of does not diminish the value of the other estates, then it w

1941In Bryant v. Whitney, 178 Cal. 640 [ 174 Pac. 32 ], the court laid down this rule: “ ‘Where there has been no uniform observance of the restrictions and substantially all the landowners have so eon- *650 ducted themselves as to indicate an abandonment of the right, which is in the nature of an easement, to have the neighborhood kept to the standard established by the original plan, and where the enforcement will not tend materially to restore to the district the character imposed upon it by the scheme, and the infraction complained of does not diminish the value of the other estates, then it w

1938In the earlier case of People v. Mahoney, 201 Cal. 618 [ 258 P. 607 ], the court laid down the requirement that to come within the rule allowing declarations to be admissible as part of the res gestae they must possess the characteristics defined in Underhill's Criminal Evidence as follows: "First, they must have been uttered contemporaneously with and grow out of the act upon which they have a bearing so as to be spontaneous and not narrative; second, they must qualify, illustrate, explain and unfold its character or significance, so as, third, to be connected with it in such a manner that th

1938In the earlier case of People v. Mahoney, 201 Cal. 618 [ 258 P. 607 ], the court laid down the requirement that to come within the rule allowing declarations to be admissible as part of the res gestae they must possess the characteristics defined in Underhill's Criminal Evidence as follows: "First, they must have been uttered contemporaneously with and grow out of the act upon which they have a bearing so as to be spontaneous and not narrative; second, they must qualify, illustrate, explain and unfold its character or significance, so as, third, to be connected with it in such a manner that th

1938In Garvin v. Chambers, 195 Cal. 212 [ 232 Pac. 696 ], the court laid down the rule which holds that procedure for dismissal must be strictly followed to be effective, a principle which has been frequently repeated, and therefor, petitioner having acquired the status of a probationer was entitled to have the statutory procedure for dismissal strictly followed.

1938In Garvin v. Chambers, 195 Cal. 212 [ 232 Pac. 696 ], the court laid down the rule which holds that procedure for dismissal must be strictly followed to be effective, a principle which has been frequently repeated, and therefor, petitioner having acquired the status of a probationer was entitled to have the statutory procedure for dismissal strictly followed.

1920The same question arose in Wickersham v. Crittenden, 93 Cal. 29 , [ 28 Pac. 790 ], where the court laid down the rule concerning the relations of the principal and agent, trustee and beneficiary, as follows: “For the reason that it is against public policy to permit persons occupying fiduciary relations to be placed in such a position that the influence of selfish motives may be a temptation so great as to overpower their duty and lead to a betrayal of their trust, the rule is unyielding that a trustee shall not, under any circumstances, be allowed 'to have any dealings in the trust property w

1919In the case of People v. Morrell, 28 Cal.App. 729 , [ 153 P. 977 ], this court laid down the rule that "Trial judges have the right to regulate the proceedings in their courts, and have the right to exercise a reasonable discretion in the direction of limiting the arguments made by counsel." We are of the opinion that there was no abuse of such discretion in the instant case. [2] The next contention of the appellant is that the court committed an error in giving certain instructions to the jury with relation to the penalties for murder and for manslaughter.

1919In the case of People v. Morrell, 28 Cal.App. 729 , [ 153 P. 977 ], this court laid down the rule that "Trial judges have the right to regulate the proceedings in their courts, and have the right to exercise a reasonable discretion in the direction of limiting the arguments made by counsel." We are of the opinion that there was no abuse of such discretion in the instant case. [2] The next contention of the appellant is that the court committed an error in giving certain instructions to the jury with relation to the penalties for murder and for manslaughter.

1917If the buyer gets what he bargains for, there is no implied warranty though it does not answer his purpose.” In Cosgrove v. Bennett, 32 Minn. 371 , [ 20 N. W. 359 ], the court laid down the rule in these words: “Where ... the article ordered was to be of a particular design or pattern, well defined and understood between the parties, and the article made and delivered in pursuance of the contract conforms to the pattern or model, there is no warranty implied further than that it should be of good workmanship and material.” We cite a few of the many decisions which declare the principle in simi

1917If the buyer gets what he bargains for, there is no implied warranty though it does not answer his purpose.” In Cosgrove v. Bennett, 32 Minn. 371 , [ 20 N. W. 359 ], the court laid down the rule in these words: “Where ... the article ordered was to be of a particular design or pattern, well defined and understood between the parties, and the article made and delivered in pursuance of the contract conforms to the pattern or model, there is no warranty implied further than that it should be of good workmanship and material.” We cite a few of the many decisions which declare the principle in simi

1917(Thompson v. Gunderson, 106 Wis. 449 , [49 L.

1900In the opinion the court laid down this rule: “In eases of this class the well-established test by which to determine whether the transaction is a mortgage or a defeasible sale is the fact whether or not, notwithstanding the conveyance, there is a subsisting, con- *404 tinning -debt from the grantor to the grantee.” Page v. Vilhac 42 Cal. 75 , follows Farmer v. Grose, supra, and holds' that a conveyance in that case was absolute and not a mortgage.

1900In the opinion the court laid down this rule: “In eases of this class the well-established test by which to determine whether the transaction is a mortgage or a defeasible sale is the fact whether or not, notwithstanding the conveyance, there is a subsisting, con- *404 tinning -debt from the grantor to the grantee.” Page v. Vilhac 42 Cal. 75 , follows Farmer v. Grose, supra, and holds' that a conveyance in that case was absolute and not a mortgage.

1900There Vilhac gave Page a contract agreeing to sell back the whole or any part of the property upon payment of a specified sum, or proportional part thereof on or before November 1, 1865, at. which time the agreement was to “cease to be in force and become entirely null and void.” In Watson v. Edwards, 105 Cal. 70 , it was contended that to make such a conveyance from the mortgagor to the- mortgagee absolute, the yielding up of the' note and the discharge of the debt, without a new consideration from the mortgagee to the mortgagor, was insufficient; to which this court says: “This contention ca