*1 Co. 1919.] Perazzi Doe v. cause, including evidence, animation the entire the miscarriage justice. such errors had resulted in a grounds urged, namely, Two other for reversal are that the court specific jury refused to instruct terms requested by the defendant, and that the evidence fails to thereby object show that the assault had for established its raping of its victim. An examination of the instructions ac- tually given jury to the discloses that covered the law sought brought to be its attention those that were re- fused, although terms, in different and the examination of the evidence that we have made satisfies jury us that the was war- finding question against ranted this of intent the defendant. judgment given,

For reasons is affirmed. Waste, Richards, J., petition rehearing for a of this cause was denied by the May appeal 9, 1919, and a district court to have supreme the cause heard of appeal, the supreme

district court on June

All Justices concurred. Appellate District, No. 2700. First April Division Two.

[Civ. al., Respondents, PERAZZI et H. J. DOE ESTATE COM- (a Corporation), al., PANY Defendants; et S. J. al., Appellants. PRINGLE et Completion op — Finding — — Mechanics’ Liens Contracts [l] Evi- sublessee, purposing changes dence.—Where prem- in the leased ises, employs persons perforin eertain the plumbing, electrical painting, wiring definite agreed upon nor contemplated adopted changes, but work is laid out progresses, t'o as it persons employed to do work follow the instructions to them from time to time sublessee, or superintending contractor, as to man- performance, ner of its an action to foreclose liens for such work, plaintiffs that all the work which the sub- requested lessee had death, to Ms App. Estate plaintiffs contracts of sufficient to sustain a on the date ' finding is plated ployees Id.—Subsequent not, that death not the contracts of then been Performance circumstances, necessarily sublessee, made, the working but were Work.—Evidence that all the completed at inconsistent premises at the time completed on the changes a later with contem- *2 date, em the date of

[3] Id.—Unsupported pleted on a given Finding.—A date is unsupported by finding that certain the evidence where work was com the ^[5] ^[4] under that Id.—Alterations bility sufficient ing their Proof,—Where' Id.—Notice proving the failure tion upon the 1192 of evidence offered the the request Notice.—Knowledge by alterations the property from completion provisions plaintiffs. require of was finished notice of Completion Code said work. and of lessee, though Lessee is section 1187 of the of Civil Procedure liability t'he owner to repairs owners to claim of the on — — contract, Failure Knowledge the owners a are to be lien is date file such owners have no the cost of the work file the notice the the twenty-five to not of one of aas notice Code of Civil made burden by filed within File Owners condition of reliev prescribed — of Pleading the of premises alleging — Procedure, performed sixty days earlier. lessee Nonlia that and sec and Superior judgment of Court of the a APPEAL County Judge. Troutt, Francisco. Jas. M. City of San and part. affirmed in part; in Reversed are stated court. The facts Redington Appel- H. Pringle and Arthur & Robbins lants. Respondents. McNutt for K. Bells and Maxwell

H. appeal is from decree of foreclosure of HAVEN, J. J.—The against ap- the leasehold interest of liens contractors’ three premises San Francisco. The in certain pellants upon performed are based the mak- of lien sued repairs portion to a building and ing of alterations occupied one J. 0. as a premises, sublessee said Dob said March while appellants. died on Upon repairs his death progress. alterations stopped. The lien workmen and all work were withdrawn claims here which all involved cover work request. the death Mr. instance at his maturely Appellants because the claim that two contracts upon which these liens were filed are based pre filing. completed prior to such The court found had not been March said contracts was unsupported by 1914. It is asserted that this evidence, for re the reason the entire alterations and contemplated pairs arrangement Mr. Long between said two claimants were not finished at time. Long purposed from the evidence that Mr. some what arrangements extensive alterations in the interior aof market, oyster-stand, barber-shop por occupied which building lessee; tion prepara which he was general to these tory change alterations he desired the loca barber-shop employed tion of oyster-stand, *3 plaintiffs perform plumbing, wiring, electrical painting necessary purpose; for that that there was no definite price agreed upon preliminary adopted nor for all these changes, but that the work was laid out from it progressed, plaintiffs followed the instructions them superintend time to time or ing contractor, as performance. to the manner of its Both plaintiffs, of the objection to whose claims the now under con made, sideration testified that all which Mr. had requested had been prior to his This findings evidence is sufficient to sustain the of the trial plaintiffs that the contracts these had been March 31, 1914. ^[2] It further employees working premises of both on the at the time death, changes of the and that all the contemplated in the not preliminary made, had then been but were com pleted at a later In view date. of the arrange nature plaintiffs, ment between Mr. it cannot be said any uncompleted there remained contract between them at (cid:127) the date of the former’s death. The evidence last referred necessarily to is not inconsistent performance with full whatever contracts the character above indicated made. ’App. Pebazzi [40 contract ^[3] The lien of painting, Castagnino which the Bros, found was upon a claim under fully per record

formed The evidence 31, on March 1914. is the completion contract to the time of of this March of one was finished on of the claimants that the work evi finding is, supported 1914. This not dence. for record ^[4] May notice of lien more than these claimants sixty days was filed testimony. own completion contract, of their as fixed ground Respondent sustain on the seeks to this lien provisions owners filed notice Procedure, that, there 1187 of of Civil section the Code file their fore, ninety had within which to entirely filing, or want silent as to the lien. The record Greely filing, held in the case of this notice. We have Noble, the burden post, p. 628, 666], Pac. owner to file this notice alleging proving the failure of the Having allege prove, plaintiffs. failed to so been allowed. late and should not have their lien too is further claimed that the record does not disclose making appellants acquired knowledge of the of the when the arose, and that lien improvements from which the knowledge and extent any obtained never upon this mat No was introduced improvements. evidence therefore, upon pleadings. rests, Its determination ter. allegations: following appellants answer of contains the these “Answering paragraph 11 of said first cause of action S, Pringle and E. admit that J. C. the defendants defendants Pringle knowledge repairs alterations and had that certain deny building, in said but that said S. J. were to be made Pringle Pringle altera full and E. C. complaint forth, par repairs and in this in said set tions and Pringle allege Pringle and E. J. C. defendants S. ticular said he malee them that desired to Long informed that said J. *4 repairs and that these defendants then and alterations certain repairs be plan of the submitted to them a full requested J. 0. that said failed submit approval, and for showing repairs, alterations these de said said they allege knew that said while J. 0. fendants building, in said did not know commenced knowledge was.” The the said just what allegations foregoing sufficient, by in our admitted 621 Estate Doe Perazzi v. prescribed opinion, require filing sec of the notice tion 1192 of condition of the Code of Civil Procedure as a appellants’ relieving liability property from the cost for the work performed request Long. knowl of Mr. Such edge inquiry. prudent need put sufficient to a man on (Gentle Britton, 9].) v. 158 328, 332, Cal. Where Pac. [111 it is shown that improve the owners had of the ments, giving nonliability the notice of above section pleaded becomes a proved matter of defense to be (West defendants. Coast Newkirk, Lumber Co. Cal. 275, 277, 231] ; Pac. Bohlig, 687, Boscus [22 100].) Pac. appellants The did not meet this burden. is reversed in so far as it a decrees lien in favor Henry Castagnino P. and Emanuel Castagnino, copartners doing business under the firm name style Castagnino Bros. In all respects other judgment is affirmed.

Langdon, 3., Brittain, petition rehearing this a cause following appeal May district opinion then rendered thereon:

HAVEN, J. filed a appellants this action have misin rehearing, claiming court has terpreted lien claimants Perazzi and the contracts Company, Construction as set forth in their Decker Electrical that, lien; further, under and, the inter adopted by pretation of the contracts the lien original and, contractors claimants were not having days, filed within liens, not thirty invalid'. request Appellants also a modification of the former prorating appeal. costs In this latter respondents joined separate have request petition, however, urging, a different basis division of costs. the notices of lien filed said Company Electrical Construction and Decker that each of alleged consisting a contract said items; two first, certain work performance in changing the loca- barber-shop, for which tion of the case a definite con- agreed upon; and, secondly, tract perform- for regard work, other with ance which no definite *5 App. Co. Peeazzi agreed be upon, was to but each of the was claimants paid the disclosed reasonable value thereof. The evidence that all of the barber-shop performed remaining Long. the death of work under Mr. each contract in time process performance at the of Long’s of Mr. work that It is with reference to that opin- the construction of the contracts forth in the former set ion applicable. between There was a definite contract alleged Long, as the lien and Mr. testimony. by their claims of lien and as established of certain part performance (cid:127)A of each contract was for the had been price, work at a definite all which bal- Long’s before Mr. death. The nature extent dependent upon work under the contracts was ance Long or instructions agent. such instructions the continuance of possibility Long. by the death of Mr. from that source terminated original contractors, While, therefore, the lien claimants were uncompleted at we are satisfied contracts that there of the death of Mr. the sense that the time 1914, was not of the trial court of on March original contractors, Being supported by evidence. comple- fifty-five after the date filed liens which were tion were time. liens in- opinion that two it held

In former were valid one was eases consolidated volved these is, parties appeal urged to the that under It both invalid. appeal prorated should be circumstances costs sup- and is contention is well founded them. This between similar cases. precedent ported appellants’ petition re- is, ordered . hereby, denied; hearing be, same and the is hereby, and the same modified be, filed herein heretofore following: “And thereof the it is adding the close proportion appellants recover ordered further Henry as amount of the lien F. appeal costs Castagnino, copartners doing Emanuel Castagnino and Castagnino Bros., name bears business liens in the appeal; involved three amount total proportion recover such of their respondents costs amount of the two liens the total H. J. appeal W. Assn. Clovis Fruit v. California Company bears to Construction and Decker Electrical appeal.” in the liens involved total amount three J., Langdon, Brittain, supreme heard to have the cause *6 appeal, district court of supreme'court June All the Justices concurred. April Appellate District, Division One. No. 2648. First

[Civ. Respondent, (a Corporation), CLOVIS FRUIT COMPANY Corpora (a v. CALIFORNIA WINE ASSOCIATION tion) , Appellant. Sales—Option Reason- Within to Cancel Contract—Exercise

LU grapes provides purchase able Time.—Where a contract for the in- fortifying wines shall hrandy if tax on used might its purchaser per. gallon, given sum creased from a effect, and by giving notice to that option terminate contract option purchaser its increased, exercises such tax thereafter gives the where it time contract within reasonable to cancel the before the com- and one-half months two cancellation notice of season, occur- seven months after the vintage or mencement cancellation, right where giving rise to event rence any purpose growers and the have unfair delay is not for delay. prejudice because no loss or suffered stances, it in such Id.—When cases so may produce Time far Material—Object injury as, or when associated unjust consequences. oe Law.—Time is with other material circum Superior Court of judgment of the Fresno from a APPEAL Judge. Austin, Reversed. County. H. Z. opinion of the court. stated are The facts Alfred Flaw Sutro, Sutro and A. D. Madison & Pillsbury, Appellant. Respondent. Lindsay and Carl E. & Sutherland Short