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title: 'The record-union. (Sacramento, Calif.) 1891-1903, January 11, 1891, Page 7, Image 7',
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"A BROKEN DREAM."
IWrltten for the Sunday Union by Gale
I read the violet-perfumed, black-bor
dered letter, and then handed it across
the breakfast table to Dick, who, after
perusing the delicately-traced chirogra
phy, returned it to mo with a comical
look of meek dismay.
"Must she really come?"
"Of course she must. What an absurd
question to ask, you silly boy."
My husband sighed dismally, "And
her two maids included, I suppose. But
I really forget, is it two or three ?"
''Two," I replied, briefly.
"Ah, yes; now I remember. And a
dog, a parrot, a monkey, and ten Saratoga
trunks," looking around the breakfast
room fearfully. "Are you quite sure
thero is room enough in this—in this—
What does she call it in her letter ?"
"Dovecot, yes, that's it. Do you think
We can manage to accommodate them
"Dick, dear," I replied loftily, "don't
give yourself the least uneasiness. I witl
manage beautifully, and I promise you
shall not sutler the slightest inconveni
ence, nor be crowded out of your favorite
chair upon Miss Rayne's account, but
come she must; how can I refuse the poor
My husband shrugged his shoulders in
differently, and taking up the morning
paper, again resumed his reading, quite
unconcious with what fond, adoring eves
I, his foolish, loving M*ife, was regarding
I idly turned and twisted the black
bordured letter into a dozen shapes, whose
contents, I must confess, were a surprise,
for the writer—Nestore Rayne—was al
most a stranger to me, 1 having met her a
short time since at my cousin Alma's
country house party, where I spent the
fjleasantest and happiest six weeks of my
ife; happiest, for it was there I flrst saw
and loved Dick. And as I gazed across
the table, watching my husband's hand
some face, partly hidden in the news
paper, I wondered, as I often wondered,
now it was possible for him to choose me
—insignificant little pale-faced me—from
amongst the pretty, nay, beautiful, girls
which surrounded him, this Nestore
Kayne. the loveliest of them all, and who
seemed ever anxious to claim his atten
tion upon the slightest pretext.
She was, I understood, the only child
and heiress to Duncan Rayne, the million
aire banker, her mother being dead some
dozen years or more.
I remember when I a. c;ked Dick how ho
could possibly prefer me, he kissed mo
fondly, calling me his llower-faee, saying
that Alma, his cousin, he loved as a sister:
Miss Rayne, he admired as a beautiful
ornament; but, nic—nic ho choose for his
wife. And I, how I loved the gifted young
artist! Happy me. I don't know, but
some sort of instinct told me Nt-store
Rayne, beautiful Nestore Rayne, loved
him, too ; and I am sure her face changed
from its brilliant color to ashy paleness
when our engagement was first an
nounced ; but, after all, it may have been
only imagination on my part.
Our courtship was of very short dura
tion, my lover insisting upon a hasty
marriage, and then straightway carried
me off to Italy, where he told nic fondly
he would have me all to himself. And
now we had only just returned to our
modest little homo when I' received this
unexpected letter from Miss Rayne, in
forming me of her father's sudden death,
and bogging to come for a lev.- short
weeks, where she could hide her grief and
loneliness in our sweet, peaceful little
I was as much averse to her coming as
my Dick appeared to be, selfnshly think
ing how a third party would mar tho
evenings in our cosy little sitting-room.
But not for the world would I allow my
husband to suspect me.
Theso meditations were cut suddenly
short by "Markham"—my pretty littlo
Maltese kitten—who had been busily
employed biting and scratching the
quilled rosette upon my slipper, and
with an occasional nip through the thin
covering with his sharp littlo teeth, which
made me wince with pain. I had twisted
and rolled the letter into a tiny, tight
round ball, when it fell upon tlie floor,
and the kitten instantly pounced upon it
and bore it a\v:f in triumph.
Dick looked up suddenly: "Well,
darling, why don't you write the answer?
If you will be quick about it I'll take it
on my way to the studio."
I hastily and confusedly searched and
found writing materials with which to
pen a cordial letter to Miss Rayne, thank
ing her for remembering nic in her
trouble, and graciously according her a
true welcome to visit us.
In due time an answer came, profuse
with thanks, and suiting we couldexpeet
her upon such a day.
I had been suffering with a severe
headache all that morning, and as Miss
Rayne was not duo until late in the after
noon, I strolled into the garden,
hoping the fresh air might prove
beneficial to my throbiiig brow,
Reaching a comfortable garden chair
just inside tho arl>or I nicely seated
myself, after first glancing at my watch.
It was past 1 o'clock. By 4 I must send
John, the coachman, to the station to
meet Miss Rayne.
How comfortable and cool is the soft
breeze through the great oaks gently fan
ning my humming forehead. If I could
only sleep. My eyes close gratefully, and I
Sigh in deep content; my head felt already
much relieved. Oh, for a ten minutes'
sleep. But no; there was a sound of
rapidly approaching wheels. I hurriedly
retraced my footsteps towards the house,
to find Miss Rayne had already arrived
by an earlier train than we expected.
How very, very beautiful she was. I
looked at her in wonder. The black of
her mourning dress contrasted so charm
ingly with the fairness of her skin, which
appeared almost dazzling in its white
ness. Her lovely, soft, golden hair was
wound into a tight wavy knot at the back
of tho small shapely head.
My heart was touched with pity when
I remembered her recent bereavement,
and I impulsively held out my arms and
kissed her over and over again in right
"You are welcome, dear," I said. The
tears were swimming in the pretty brown
eyes, as she laid her head upon my shoul
der, and sobbed softly.
"You are so good to let me come. If
you only knew how lonely and wretched
I pressed the golden head tighter
agaiust my heart, feeling very motherly
towards this beautiful, forloru-looking
|irl, who was at least a head taller than
I, and and nearly five years my senior.
"Come with me," I said. "Aud your
She shook her head sadly.
"I have no maid with me, Nellie, and,"
B wan little smile flitting for a moment
across the sweet lips, "only one very
I led the way to the room which I had
prepared for my guest. She sank im
mediately into an arm chair, exclaiming:
"Oh, Nellie, dear, how homelike every
thing seems; how quiet: how peaceful."
Delighted at seeing her so pleased, I
kissed her again and hurried downstairs
to send up a nice cup of fresh tea before
"Oh, Dick," I cried when my husband
returned, "My dear, sho is changed: so
much more beautiful and gentle, and
something else —womanly. I think it is.
And would you believe it?" tweaking his
ear playfully, "she didn't bring anything
with her but one poor littlo trunk!"
"What, no maid?" incredulously.
I shook my head lauehinciy. "No
maidj parrot, dog nor monkey."
"\\ ell," groaned Dick, "there must be
c screw ioose somewhere."
"Nonsense, Dick." I replied crisply,
"she simply showed her good sense arid
manners, knowing we were only plain
Dick folded his arms around me. "Nell,
.Nell, I suppose it must be good-bye to
the nice, cosy evenings with you anil my
pipe. How long do you imagine she in
tends to remain?"
"I hardly know," I replied woefully,
for I, too, Mas thinking with a sad heart
about our pleasant evenings together.
"Not long, as I scarcely believe she can
content herself away from the world for
any great length of time. However, we
must try and make it pleasant and cheer
tal for the poor child, so don't grumble,
JDickey, dear," |
Well, a week passed; two, three, and
still Miss Rayne lingered with us. I
sometimes wondered why she should iso
lato herself so entirely from society, and
was beginning to believe in what my hus
band said upon the first day of her arrival
regarding a screw being loose somewhere.
And at last the secret was out. Duncan
Rayne, tho reputed millionaire and
banker, had died, owing to the bank fail
ure, leaving this slight, beautiful girl to
battle with the world alone. It was with
bitter tears she confessed her trouble to
Dick, and I concluded by sayiug that in
her sore trouble and perplexity sho re
membered us, and was sure we would
afford her shelter until the stunning
shock of her misfortune should wear
away, after which she would seek em
ployment as governess or anything else
in which she could earn an honest living.
I was deeply touched when she had
finished telling her story, and putting my
arms lovingly around the slender black
robed figure, said, "You shan't go away.
You shall stay here with us, shall she not,
My husband arose hastily and came
quickly towards us, clasping her slim,
white hands in his own.
"Indeed, she shall remain, and hence
forth. Nestore, this home is your home
just as long as you choose to call it so."
Thus she was firmly established
amongst us. I don't mind confessing
that in secret I sometimes miifced our de
lightful evenings together, Dick and I,
but would always try to banish such
selfish thoughts from my mind; but,
alas, there was at times something else
which I missed dearer than all else be
sides, and that was my husband's loving
caresses. They seemed cold and passion
less and even in our few leisure hours
together I noticed a shade of impatience
and annoyance whenever I attempted a
wifely kiss. My heart ached in silence
and in silence I pondered upon this sud
deu change. I have even—I am posi
tively not mistaken—I have even ob
served a look of utter repulsion steal
across his face when I approached him.
What has wrought the change? Am I
growing ugly? 1 gaze fearfully, eagerly,
into my mirror. No, lam still the same.
As I said before, lam no beauty, but
Dick has told mo often my face is sweet
as a flower, not beautiful/but flower-like.
Ah, me. why is he changed ? Why is he
One evening, walking disconsolately
and miserable in tho shrubbery after a
late dinner, where I noticed my hus
band's behavior even colder than usual,
I thought to calm my aching heart in sol
itude. I had paced, perhaps, half-way
the length of the walk when the moon,
struggling through a cloud, lit up the
garden with golden light. I stopped in
wonder, for coming towards me were
two forms. I struined my eyes, and as
they drew near I recognized Miss Bayne
and my husband—her head almost touch
ing his shoulder, as she leaned languidly
towards him. Then my heart turned
cold, ice-old, for ho suddenly bent his
head and kissed her red lips held so in
vitingly toward his own. Not once, but
twieo and thrice, did lie kiss her. With a
sob of agony I gathered mv shawl and
skirts around me and darted quickly be
hind the thickly growing shrubbery. As
they slowly passed tho spot whore I had
so recently stood, I heard her say :
"Oh, darling, darling, can you not dis
solve this hateful tie? How much longer
can this last without that fool suspect
ing ?" Then his voice answered, speak
ing low and tender:
••It must, it shall cud. I can live with
out you no longer."
ilis arm steals around her waist. Ah,
heaven! ho is kissing her again. I slowly
< -.-■■ ;.■ through tho shrubbery, until reach
ing a side door I stagger blindly up
stairs to my own room. A strange
lethargy seemed to possess mo. I felt
numb and dead. I could not raise my
arms, and my feet felt paralyzed. I sat in
front of the fire-place, thinking, thinking.
He camo in later and proceeded to bed.
He spoke, but I pretended to have fallen
asleep in the chair, where I remained all
In the morning I was dreadfully, terribly
ill, my head was racking with pain and
my limbs refused to support me. I rang
for a cup of tea, which I drank gratefully,
hoping it might relieve my aching head.
But instead of that it deadened my senses
still more. lam moro powerless and
helpless than ever. A dreadful thought
crosses my mind. lam being slowly
poisoned—that is the reason of this heavy
feeling. Horrors! the tea I have just
swallowed was drugged. A prayer arises
to my shaking lips. "Oh. God," I moan,
"am Ito dio like this? Help me, help
I cannot rise; lam utterly helpless. A
determination comes over me. I will
confront them with their guilt and treach
ery before I die. With a painful effort I
rise to my feet, which feel like leaden
weights, and drag my trembling limbs
heavily across the bedroom floor. Slowly
and laboriously I descend the stairs,
pausing well-nigh exhausted. I again
gather my little remaining strength
and push open the breakfast-room
door. It is deserted. With a hand
pressed tightly against my bounding
heart I lean panting against tho table.
Through the portiere which leads into the
sitting-room I hear a low murmur of
voices. With a last supreme effort I tot
ter across the room and raise the curtain.
I see them; she is in his arms and he is
straining her to his heart, again and again
raining kisses upon the smiling, upturned
lips. I regard them in silence, and then
speak. My voice cannot raise above a
"Traitors! you have done your work
They turn with a start; my stiffened
fingers relax their hold upon the curtain,
I stagger, reel and fall.
"Nell, Nell, Nellie!" I hear my hus
band's voice calling me. It seems miles
and miles away.
"Nellie, Nell, Nellie!"
I try to rise; I feel cramped and warm;
tho sun seems to be pouring its blinding
rays into my unprotected face.
I sit up, with a start of bewilderment,
and look around me. Where is the break
fast room? lam sitting in the old arbor
with a strong ray of sunshine falling full
upon me, and outside mv husband's
voice is calling "Nellie, Nellie!" now
with a decided ring of sharp impatience.
I struggle blindly to my feet, and start
for the door just as he is about to enter.
"Oh, here you are," with a sigh of re
lief; "you truant, I think, yes I really
believe, you have been asleep, naughty
I do riot answer; my mind is in a tu
He holds a telegram towards mo.
"Here, sweetheart. No need to send
tho carriage for our unwelcome visitor,
for here is a dispatch saying she has
changed her mind and goes with a party
of friends to Europe. Just as well, little
I do not answer. A silent prayer of
thankfulness is ascending from my* heart
to the glorious blue heavens above; and
then bursting into tears of passionate joy
I throw my arms around my husband's
neck. A dream, a dream; all a hideous
day dream, but Oh, how happily broken.
"VAS MARRIAGE A FAILURE ?"
Vas marriage a failure? Veil, now, dot de
Altogedderhowyou look at id, mine friends.
Like dhose double horse teams dot you see at
Id depends pooty mooch on der pair in der
Eef dliey don'd pull togeddher righdt off at
Ten dimes oudt of nine dhey vas beddher
Vas marriage a failure ? I ask mine Katrine,
Und she looks off me so dot I feels pooty
Dhcn she say: "Mr. Strauss, shust come here,
eef you bleaze."
Und she dake me vhere Yawcob und leedle
By dher shnug trundle bed vast shust saying
Und she say, niit a smile, "Vas der some fail
ures dherc?" — Yaweob Strauss.
In England:Sthey give their football
players #15 to $20 a week regular salary^
with ?1.000 bonus at the end of the season
if their conduct has been creditable. The
plan of putting a premium up for good
conduct has a wholesome effect. The
plan might be tried on baseball players.
There are 16,000 public schools in Mis
souri. The new State Superintendent
proposes to introduce a uniform system
of inst ructions and a specified course ol
instructions to be published in pamphlet
form and sent to aach teacher of tha State.
THE ST73TDAT TJ]STOy, SACRAMEKTO, CAL., JANUARY 11, 1891.-EIGHT PAGES.
SUPREME COURT DECISIONS.
[Filed January 5,1591.]
Appeal from Superior Court, Los Angeles
county—John R. Aitken, Jud^e.
For appellant. Waters & Gird.
For respondent, E. E. Rowell, Paris A Fox.
W. E. Campbell, Respondent,)
_. • vs. V No. 13,891.
Charles Thomas, Appellant. J
This is an action to recover two-fifths of the
amount for which certain property was sold
by defendant. The Court gave judgment for
plaintiff for $1,850 ao, and defendant ap
The defendant and other persons entered
Into a written contract with plaintifi'by which
plaintitr was appointed their agent to negoti
ate a sale of a certain reservoir dam Bite, situ
ated on the .San Jacinto river, in San Diego
county, and on which they agreed that if
plainti:i" effected a sale to be approved by
them, they would give him two-fifths of the
purchase price, and that if they, themselves,
mude a sale without consulting plaintiff lie
was to have the same percentage as though he
had effected the sale. While this contract was
still in force, aud plaintiff was still their
agent, they effected a sale without consulting
him; and on that sale defendant received
proper* of the value of $4,627—f0r two-fifths
of which the judgment was rendered.
At the trial a great many exceptions were
taken which are not. referred to in appell
ant's brief, and which do not seem to present
any material error. Tlie real point insisted
on by appellant is that the property sold was
not tlie property mentioned in the contract.
Tlie facts ou which this point rests are these:
At the time of the contract defendant did not
bave the legal title to the reservoir dam site—
but only a possessory title. He had posted
notices claiming the sits and also certain
water rights, and claimed to be in possession.
The site was on section 7, and was conse
quently railroad land. He told plaintiff tliat
he had made arrangements with the Railroad
Land Agent, and that as soon as the land was
graded and in the market he would get title
from the railroad company. Afterwards such
title was procured, and although lv tiie sale
the property was described as so much land,
it was the same land tliat constituted the res
ervoir dam site described in the contract, and
was bought by the purchasers, Judson, Potts
and Mayberry, for the express purpose of a
reservoir darn site—lor which purpose it was
mainly valuable. The facts, therefore, that a
better title was procured after the making of
the contract, and tliat tlie property was de
scribed in the sale ns land, do not affect tlie
contract. It Is clear that, the property men
tioned in the contract, and the property sold,
was the same.
Judgment and order denying a new trial
affirmed. McFabland, J.
Slf ARPSTEIN, J.
[Filed January 5,1891.]
Appcril from Superior Court, Fresno county
—J. B. Campbell, Judge.
For appellants, R. li. Terry, C. W. Thomas.
For respondent, Webb & Van Meter, F. 11.
A. M. Drew, Respondent,
A. J. Pedlar and No- 13,758.
M. M. Garroutte, Appellants.
On the 20th day of April, ISBB, the parties
to this action entered into a written agree
ment whereby the defendants agreed to sell,
and the plaint iff to purchase, three lots of land
in the town of Fresno at the price of 813,500,
to be paid as follows: Sl.ooo upon the execu
tion of the agreement; $7,000 within sixty
days from the dale of the agreement, and to
assume and pay a mortgage of $4,000, to
Robert B. Thompson; and also to pay the in
terest ou the mortgage and all taxes there
after to become due oh the land. The agree
ment also contains the following provision:
"In the event of the failure to comply with
the terms thereof, by the said party of the
second part, the parties of the lirst pert shall
be released from all obligation In law or
equity to convey said property,and said party
01 the second part sliall forfeit all right thereto,
and all money paid thereon shall be as liqui
dated damages for the non-fulfillment thereof
by the party of the second part. And the said
parties of the lirst part, on receiving such pay
ments, at the time and in the manner above
mentioned, agree to execute and deliver to the
said party of the second part, or to his assigns,
a good and sufficient deed conveying the said
land free and clear of all ineunioranees made,
done or suffered by the said parties of the first
part, except as above specified.
"And it is understood that the stipulations
aforesaid are to apply to and to bind the
heirs, executors and administrators and as
signs of the respective parties and that time is
of the essence ol (his contract."
The plaintitr paid Sl,ooo upon the execution
of the agreement, but failed to pay the $7,500
when the same became due, and never offered
to pay the same or any part thereof until tlie
2 !th day of April, 1889 (about ten months
after maturity), when he tendered full pay
ment and demanded a deed for the land. Tlie
defendants then refused to accept payment or
to execute a deed, and also refused to refund
to plaintlff'the "SI.OOO paid by him upon the
execution of the agreement, and elected to re
scind the agreement. Thereupon the plain
tiff commenced this action to recover the
§1,000 paid by him ujion the execution of
the agreement, formally alleging in his com
plaint the facts above suited.
The defendants filed an amended answer ln
which they expressly admit the execution of
the contract and the payment of $1,000, as
alleged ln tbe complaint; bnt allege that they
have performed their part of the contract anil
that plaintiff failed and refused to pay the
$7,500 or any part thereof when the same be
came due, and that he abandoned the contract.
They admit, however, that plaintiff made tlie
tenaer of payment and demand for a deed on
April 24. 1889, as alleged in the complaint.
They further "allege that on the failure of
plaint iff to perform his said covenants, they
treated the 81,000 heretofore paid as for
feited, and said contract is abandoned by the
plaintitr, and annulled, and that they con
verted the said 81,000 to their own use."
They further allege that "the said property
had greatly increased in value between June
20,1888, and April 24,1889; that said in
crease was of the value of 82.000."
They "deny that they are indebted to plain
tiffin any sum, or that plaintiff has sustained
any damage by reason of any act of defendants
or either of them."
To this answer the defendants added a cross
complaint, in which they set out the agree
ment; allege the payment of the $1,000; the
performance thereof on their part; the failure
and refusal of the plaintiff to perform on his
part, except as to tlie payment of the 81,000;
"that defendants are the owners and in po
session of the land described in said contract;
that said contract is a cloud upon defendants'
title to said land;" and praying that the con
tract be declared void and of no effect, and
that it bo canceled, and for such further relief
as they may be entitled to.
Upon due notice plaintiff's counsel moved
for judgment on the pleadings. At the time
appointed counsel for the respective parties
appeared and plaintiff's counsel argued the
motion, and it was submitted on briefs to be
thereafter filed, but defendants' counsel tailed
to tile any brief.
Some time after the expiration of the time
agreed upon and allowed for filing brief-", to
wit: On October 12,1889, the Court rendered
Judgment for the plaintiff for $1,000 and in
terest thereon from April 24, 1889, and
Thereafter upon due notice defendants'
counsel moved the Court to set aside the
judgment on the grounds:
1. That the complaint does not state facts
sufficient to constitute a cause of action.
2. Tliat no written findings of facts were
filed or made.
3. That material allegations of the complaint
4. That no answer was made to the cross
5. That the answer stated new matter con
stituting a defense to the action.
At tlie same time defendants' counsel made
another motion to vacate the Judgment on the
ground "that said Judgment was made and
entered against defendants, through their
mistake, madvertance and excusable ne
This motion was made on affidavits, ln con
nection with which they proffered a draft of a
second amended answer which they proposed
to tile iv case the Judgment should be set
The following are the affidavits upon which
the motion was made:
"R. B. Terry being first duly sworn, deposes
and says that he is now and at all times since
tlie defendants have appeared in this action,
their attorney in said matter; that when the
motion heretofore made by plaintiff for judg
ment upon the pleadings herein, was ordered
submitted by the Court upon briefs thereafter
to he filed by counsel for plaintiff, and briefs
of defendants in reply thereto, affiant upon re
ceiving the briefs of counsel for plaintiff was
unable to find in the city of Fresno tlie au
thorities upon which his answer to said brief
would be made, and that upon an examine
tion of said authorities at hand, affiant de
termined that in order that the case should be
fully determined upon its merits that he
would ask leave of the Court to file a second
amended answer, that so intending, he did not
answer such brief. R. BI Terry."
"A. J. Pedlar being first duly sworn, de
poses and says, that he is one of the defend
ants in tlie above entitled action; that the
judgment herein entered on the 12th day of
October, 1889. was entered through mistake,
inadvertence, surprise and excusable neglect,
and was shown in the affidavit of R. B. Terry,
"Affiant further says that he has fully and
fairly stated the case in this action to his said
counsel. R. B. Terry, who resides in the county
of Fresno. State of California, and after such
statement, is advised by said R. B. Terry that
he has a good and substantial defense on the
merits of tbe action, and thoroughly believes
the same to be true. A. J. Pedlar."
The proffered amended answer contained
two averments in addition to the first amend
ed answer, to the effect (1) that defendants had
tendered to plaintiff a sufficient deed for the
lots on the 20th day of June, 1»88, and at the
same time demanded payment of the sum of
$7,500, which, by the terms of the agreement,
the plaintitr was to pay "on or before sixty
days from the date" of the agreement: but,
that plaintiff then refused to pay said sum or
any part thereof, and thereby released the de
fendants from ail obligations under said
agreement, and thereby also released all claim
to the $1,000 theretofore paid by him; and (2)
that between April 20, 18SS.'and April 24,
1889, certain taxes and assessments amount
ing to $ 114 85 were levied upon said lots and
became due and payable, and that plaintiff
never paid nor tendered them, or any part
thereof, and that defendants were compelled
to pay a street assessment of $45.
The proffered answer also contained the fol
lowing, which was not in the first amended
"Defendants deny that they or either of
them elected to rescind said contract of sale in
complaint mentioned, or that they did re
scind the same, but, on the contrary, allege
that plaintiff rescinded said contract and
every portion thereof long prior to the 24th
day of April, 1889."
The Court denied the motions to set aside
the judgment, the defendants appeal from the
judgment and also from tlie order deny
ing their motion, upon the judgment roil con
taining their bill of exceptions. ■
1. I think there was no error in rendering
Judgment on the pleadings. It clearly appears
that the contract was rescinded long before
the commencement of the action, and that it
was so considered by both parties. Time was
of the essence of the contract. Plaintiff failed
to pay the 37,500 on or before June 20,1858
according to the agreement, and did not ten
der payment thereof until April 21, 1889.
when the defendants refused to accept it and
execute a deeff, on the ground that plaintitr
had abandoned and annulled the contract by
failing to tender payment within tbe stipu
lated time—sixty days. They say in their
answer, that, upon the failure of plaintiff to
pay according to the terms of the contract,
they treated the contract as abandoned and
annulled by plaintiff, and the $1,000 paid, as
forfeited, and they do not deny the averment
in the complaint, that they "elected to rescind
said contract of sale."
From the time defendants refused to accept
payment and execute a deed (April 24. 1889,)
the plaintiff has considered the contract re
scinded, aud bases this action partly upon
that ground, his complaint stating facts from
which a rescission is a necessary inference.
Under these circumstances the plaintiff was
entitled to recover the f-,000 paid by him,
less such actual damages as may have been
sustained by the defendants by plaintiff's
breach of the contract. (Grey vs. Tuhbs, 43
Cal. 3G4; Cleary vs. Folger, 84 Cal. 316).
But such damages cannot be recouped in this
action for the reason that none such has been
Counsel for appellants contend, however,
that his clients are entitled, under the express
stipulation of tlie contract, to retain the ft,
-000 paid, as liquidated damages; whereas, re
spondent's counsel claim that the stipulation
as to liquidated damages is void. This is the
principal issue presented for decision. I think
the stipulation is void under the following
sections of the Civil Code:
"Section IG7O. Every contract by which
the amount of damages to be paid, or oilier
compensation to be made, for a breach of aa
obligation, is determined in anticipation
thereof, is to that extent void, except as ex
pressly provided in the next section.
"Section 1071. The parties to a contract
may agree therein upon an amount which
shall be presumed to be the amount of d&m
age sustaiued by a breach thereof, win n, (Tom
the nature of the case.it would Lo impractica
ble or extremely difficult to fix the actual
It appears from the nature of the contract
nnder consideration that it would not be im
practicable or at all difficult to flat the actual
damage in this ease, since Section 3307 of the
Civil Code provides a rule by which the dam
age, in all eases of this kind, may be measured
and definitely fixed, as follows:
"Tlie detriment caused by the breach of an
agreement to purchase an estate in real prop
erty is daemed to be the excess, if any, of the
amount which would have beeu due to the
seller, under thecontract, over the value of the
property to him."
That is. the excess of the agreed price over
the value of the property to the party who
agreed to sell.
In Field on Damages (Section SOS) the rule
is stated as follows:
"The general rule of damages on failure of
tho vendee to take the property purchased
and pay for the same, would be the actual loss
sustained by the vendor then by: which would
ordinarily be the difference between the a ctua i
contract price and the actual value of the land
at the time of the breach, if the property shall
have declined in value." (.See also Eva vs
McMahon, 77 Cal. 407).
Th© defendants not only failed to plead any
damages to them, but alleged in their answer
an increase of $2,000 in the value ol the prop
erty between tho delimit of the plaintiff and
their refusal to accept payment and execute "a
deed; and as it does not appear that plaintiff
ever had possession of tho property, but does
appear that defendants were m possession at
the time they answered, they can"claim noth
ing for use and occupation.
No material averment of the complaint was
denied. The denial of Indebtedness was but a
conclusion of law Inconsistent with the ad
Tha defendants were not entitled to any af
firmative relief upon their oroas-eomplaint,
which they have not obtained by the lodgment
on the pleadings. Both the complaint and an
swer admitted that tbe agreement had becne-e
--scinded and annulled by the parties; and, as
the judgment on the pleadings partly rests
upon that fact, it is conclusive evidence of the
The agreement was not recorded and, not
being acknowledged, was not entitled to rec
ord. Besides, the cross-complaint dors not
offer to refunu tlie money or any past thereof,
admitted to have been received by the defend
ants under the contract. (Boha'll vs. Diller
41 Cal. 533).
It is contended that the complaint fails to
state a cause of action, in that no demand is
alleged. The act ion is to recover money had
and received by defendants to the use of the
plaintitr. and it is alleged the defendants "re
fused and still refuse to poy to plaintiff said
sum of one thousand dollars or any part
thereof." Tlie answer admits the receipt, of
the money and alleges that defendants "con
verted the said $1,000 to their own use."
From the timo the defendants elected to re
scind the contract, ortoconsiderandtreat.it
as rescinded, it was their duty to refund the
money they had received under the contract,
and no demand before suit was necessary
(Quimby vs. Lyon, 03 Cal. 394.)
2. It does not appear that there was any
error or abuse of the discretion of the Court in
overruling the defendants' motions to set
aside the judgment, and counsel tbrappcllants
has not urged this point here. The averment
in the proffered answer, that defendants ten
dered to plaintitr a deed on the 20th day of
June, 1888, and demanded payment, etc
only shows that plaintiff was first in default
It does not change or dispute the fact that
both parties considered and treated the con
tract as rescinded, as above stated; and, had it
been Inserted iv the answer on which the
judgment was rendered, the plaintitr would
still have been entitled to Judgment on the
I think the Judgment and order should bo
affirmed. Vakclief, C.
• Belcher, C.
For the reasons given in the foregoing opin
ion the judgment and order are affirmed.
I concur; but it is well to note the distinc
tion between this case and Scott vs. Glenn (re
cently decided) and other cases, where there
was an unconditional covenant that the flrst
payment should belong to the vendor if the
vendee should fail to make the deferred pay
ments. McFaklasd, J.
ANY SOUL TO ANY BODY.
So we roust part, my body, you and I,
"Who've spent so many pleasant years to
'Tis sorry work to lose your company.
Who clove to me so close, whate'er the
From winter unto winter, wet or dry;
But you have readied the limit of your
And I must Journey on my way alone.
And leave you quietly beneath'a stone.
They say that you are altogether bad
(Forgive me, 'tis not my experience),
And think; me very wicked to be sad
At leaving you, a clod, a prison, whence
To get quite free I should be very glad.
Perhaps I may be some few days hence,
But now, mcthiuks, 'twere graceless not to
A tear or two on mv departing friend.
But you must stay, dear body, and I go,
And I was once so very proud of you;
You made my mother's eyes to overflow
When flrst she saw you. wonderful and new,
And now, with all your faults, 'twere hard to
A slave more willing, or a friend more true.
Ay, even they who say the worst about you,
Can scarcely tell what I shall do without you.
A Catch to It.
A middle-aged woman called at an in
surance oflice on Griswold street a day or
two ago to announce that she wanted to
insure her house.
■"For how much?" asked the agent.
"Oh, about §500."
"VerywelL I'll come up and investi
"I don't know much about insurance,"
"It's very plain, ma'am."
"If I'm insured I'orSoOOand if the house
burns up I get the money, do I?"
"And they don't ask who set it afire?"
"Oh, but they do. We shall want to
know all abont it."
"Then yoa needn't come up," she said,
as she rose to go. "I heard there was some
catch about it somewhere, and now I see
where it is."— Detroit Free Bress.
The Czar's personal- bodyguard of pri
vate police consists of fifteen specially
picked Cossacks, mature and tried men.
These have to keep watch in the kitchen
The principal of the public school at
Antioeh, Fla., is A. B. H«ndry, a lad of
I would bring thee an offering. What shall it
Gold from the Indies, or gems from the sea.
Gums from the Orient, pearls from the deep?
Some precious token for friendship to keep.
A rainbow's bright tint that I would snatch
from the sky
When its prismatic hues form a pageant on
I woul-1 steal softly forth on some fair sum
And imprison a moonbeam to gladden thy
I would weave thee a garland of tropical
That should tell thee of bloom and of long
Whose precious aroma should steal through
Like <-dors from Eden—of richest perfume.
I would cull a moss rosebud of soft crimson
Pluck a gossamer wing from some gay butter
Entice some fair star from its bright home
To shine in the crown of the one that I love.
I would tempt from its home some rare, musi
Whose song is tho sweetest that ear ever
And bid him pour forth his rich notes on the
And by melody's magic dispel every care.
I would send thee a sea shell of peach-colored
Where the Peris of ocean And slumber and
And I'd hope that its whisperings, gentle and
Would tell of the fond love I cherish for thee.
I would bring thee a lute, have each fairy-like
With music celestial unceasingly ring.
1 would teach somo fair minstrel to wake all
Giving utterance to melody's magical words.
I would cross the [wide ocean, an offering to
Rring gifts from afar—the bright gems of tlie
I would traverse the earth, from equator to
Could I find the rare gifts which would glad
den thy soul.
If I could. I would fly to the Father of Love,
Aud bring thee rich blessings and gifts from
I would tell the bright angels to shield thee
And all y>..ur glad virions of earth to fulfill.
But. ns this cannot be, on the altar I flin-r
A true heart. Will you smile on tbo offering
Will .vou deem it more precious than riches of
Can you truly confide in its candor and worth?
If you scorn not the gift, O, then keep it for
And ne ver, no never, this heart cast away;
'Twill enshrine your dear self till ita last throb
Aud it launches away to return—nevermore!
—New York Ledger.
NATIONAL BANK OF Dl 0. MILLsT C_~
Sacramento, Cal.—Founded, 1850.
Saturday Hours 10 a. m. to 1 p. sr.
Directors and Shareholders:
D. O. MILLS 1,5*58 Shares
EDGAR MILLS, President 1,688 Shares
S. PRENTISS SMITH. Vi l'ros. 250 Shares
FRANK MILLER, Cashier 351 Shares
C. F. DILLMAN, Asst. Cashier.... 125 Shales
Other persons own 1,198 Shares
Capital and Surplus, $GOO,OOO.
«5- Chrome Steel Safe Deposit Vault and
FARMERS' AND MECHANICS' SAVINGS RANK
Southwest Corner Fourth and J streets,
Guaranteed Capital $500,000
LOANS MADE ON REAL ESTATE. IN
terest paid semi-annually on Term and
I'.. I'. STEINMAN President
EDWIN K. ALSIP Vice-President
D. 11. WHITBECK Cashier
C. H. CUMMINGS Seeretarv
JAMES M. STEVENSON Surveyor
B. U. BrmHMaVTt, Edwin K. A„srp,
C. H. «'•. mminc.s, W. E. Tekbt,
Sol. Rum tod, James McNasser.
Jas. M. Stevenson.
CALIFORNIA STATE BAM
And Safe Deposit Vaults,
Draws Drafts on Principal Cities ol the World.
Saturday Hours, 10 A. M. to 1 P. M.
President N. D. RIDEOUT
Vice-President FRED'K COX
Cashier A. ABBOTT
Assistant Cashier W. E. GERBER
C. W. Clarke, Jos. Steffens,
Geo. C Pep.kins, Fred'k Cox,
N. D. Rideout, J. R. Watson,
W. E. Gerber.
PEOPLE'S SAVINGS BANK,
Sacramento City California
CAPITAL STOCK PAID UP. 8*85,600 *
Reserve and Surplus, 954,868 20. Term
and Ordinary Denosits received. Dividends
paid semi-annually. Monev loaned on Real
Estate only. WM. BECKMAN, President.
Geo. W. Lorenz, Cashier.
THE OLDEST SAVINGS BANK IN THE
city, corner of Fifth and J streets, Sacra
mento. Guaranteed capital, SoOO.OOO; paid
up capital, gold coin, $300,000: loans on real
estate in California, July 1, lSyo, 52,898,442;
term and ordinary denosits, July 1, 1890,
§2.709,394. Term and ordinary deposits re
ceived. Dividends paid In January and Julv.
Mont} loaned upon real estate only. The
Bank docs exclusively a savings bank busi
ness. Information furnished upon applica
tion to W. P. COLEMAN, President.
Ed. R. Hamilton, Cashier.
CROCKMMWORTH NATIONAL BANK,
322 Pine street, San Francisco.
PAID-DP CAPITAL, $1,000,000. SURPLUS, $250,000.
CHARLES CROCKER E. H. MILLER, JR.
E. C. WOOLWORTH President
W. E. BROWN Vice-President
W. H. CROCKER Cashier
CAST YOUR & OVER Tl
fan ■ ■■■—■■■■--■■-■--■ll FKnprT!- ***• *■ fr« Olnftrat
Bff*,™|i^_f^^Tiw^____y ai*'^y l»»f«ronouraicaloper»tid
3 Clan Q fcni f WmW t;UE()r *' rt-!t,':la, piles, raricocd
fSgSn _H m BPV _LvVh hydwwele; bmeen, appliances i
r^» ■ m V<i ' iUI i^T-i T^Al ,J,**•'iU*; *le,. female complaint
'00, confiilcatial book for m<
I explaining why thoiuaads cannot gut <nu»l of special, i ri .-*_
I ehroaie duMasM, tfr_, fnr*. longa, _«_**.nai TreakneM, lens
I nvn.ii >■ i, g!t>et, sTphilie, unnatural louon, results of abuce .
1.1 .. ■ a which unfit all for marriage, happintfmi, or '■(-■ *■ a
tim DR. LIEBIG'S WONDERFUL GERMAN INVIGORATO*
the greatest remedy for above complaluU. To prove its merit
$1 trial bottle sent freo. Addrm_, DR. LIEBIG A CO. 400 0«K
»_., S-a Francisco, CaL, or SOX W. Dth tt., -Uusae ot), Ko,
hem imam, gunsmith,
MANUFACTURER AND DEALER IN
Guns, Rifles, Revolvers, Ammunition and
Sporting Goods. All the leading makes of
Guns and Rifles at popular prices—Parker,
Lefever, Colts, .Smith, Ithaca, new Raker and
new make Guns. First-class Gun and Rifle
Work. Send for price-list of Guns. No. 523
K Street, Sacramento, Cal.
DR. A. BARKAN,
—Specialist for Diseases of the—•
Eye, Ear, Nosa and Throat,
HAS RETURNED FROM EUROPE AND
resumed the practice of his profession.
Office, It Grant Avenue, San Fi-nn
G. Benjamin Clow, M. D.,
SURG EON A ND PHYSICIAN. P. ESI DE NCE
lo^l L street. Office, corner Sixth and K
streets. Hours—lo to 12 a. x., 2 to 4 and 7
to 8 P.M.; Sundays. 11 A. M. to 1 P.M. Su
perfluous hair, facial blemishes nnd binh
marks removed by Electrolysis. Telephone
mHE UNION ICE COMPANY HAVE RE
_L moved to their newand spacious quarters,
521 and 523 I streets, between Fifth and
Sixth. All kinds of COAL constantly on hand.
dlO-lni CHAS. SELLINGER, Manager.
EPj Af mm BUSINESS
r. M 3,1 B_ "''' Pott Afeett
&Sl£~~a__l__l M sai riuxcisce.c*.
MP -*"w r—c o*ar»a,*—
THE NEWS OF THE WORLD IS CON
talned in the WEEKLY UXION.
•gjotels cmfcr "Uc&hmvrtnts.
GOLDEN EAGLE HOTEL,
Corner Seventh and K streets.
STRICTLY FIRST-CLASS. FREE 'BUS TO
and from the cars.
W. O. BOWERS, Proprietor.
Corner Seventh and K streets, Sacramento.
CITRICTLY FIRST-CLASS. FREE 'BUS
0 U> and from the Cars. P.. B. DROWN, for
mcrly of the State House Hotel, l'roprietor.
THE LEADING HOUSE OP SACRA
rnenfo, Cnl. Maria, 23 cents. WM. LAND,
Proprietor. Free 'Bus to and from hotel.
112G Market st., San Francisco, opp.
Keane Bros.' Dry Goods Store.
THE BEST AND CHEAPEST ROOMS IN
dIS-lm MRS. ELDRED EDELMAN.
IT-OUI'.TH AND K STREETS, THE CHEAP
• est and best hotel in the city. Meals, 25
eenis; Rooms, 25 nnd 50 cents; BoL:rd, 84 per
week; Board and Lodging, #20 per month.
n2C-tf W. A. CASWELL, Proprietor^
THE SADDLE ROCK
Restaurant and Oyster House.
TjiiRST-CLASS HOUSE IN EVERY RE-
Jj spect. Ladies' dining-room separate. Open
Bay and night. BUCKMANN & CARRA
GHER, Proprietors. No. 1019 Second street,
between J and K. Sacramento.
Corner K and Fii'th sts., Sacramento.
CENTRALLY LOCATED, AND .CONVE
niont to all places of amusement. The best
family Hotel in the city. The table always
supplied with the best the market affords.
Street Cars from the depot pass tlie door every
five minutes. Meals, 25 cento.
C. V. SINGLETON, Proprietor.
REEVES & LONG, Undertake^
No. 009 J Street,
KEEP ON HAND EVERYTHING IN THE
Undertaking line. Also, Ageots for the
Indestructible Burial Caskets (made of cement)
Orders from city or country attended to at all
hours. No Ice used. Embalming a specialty.
J. FRANK CLARE, Undertaker,
No. 1017 Fonrth st., bet. J and K.
ALWAYS ON HAND THE MOST COM
plete stock of Undertaking Goods on the
coast. Country orders, day- or night, will re
ceive prompt attention. Telephone No. 134.
GEO. H. CLARK, Funeral Director.
W. J. KAVANAUGH, Undertaker.
No. 513 J St., bet. Fifth and Sixth.
ALWAYS ON HAND A LARGE ASSORT
nient of Metallic and Wooden Caskets.
Burial Cases, Collins and Shrouds furnished.
Coffin orders will receive prompt attention on
short notice and at the lowest rates. Office
open day and night.
* T THE ANNUAL TOURNAMENT OF
_-_ 1889, held at Cannes. France, the grand
prize, consisting of 2,000 francs aud a valua
ble cup, was won with the Parker Hammer
less. The tlrst Parker Hammerless :;nn made
won the championship of America at Decatur, ,
111. Send for Illustrated circular.
PARKER BROS., Makers,
New York Salesroom, 07 Chambers St.
THE BEST SELECTION OP
J. HYMAN, JR.,
No. 506 J street Sacramonto
CHARLES FLOHH. PRACTICAL GUNSMITiI
1 AQ A SIXTH STREET. BETWEEN J AND
lU4_- K. importer and Dealer in Shotguns.
Rifles and Pistol*. Ammunition of all kinds
constantly on hand. Safes and Scales re
paired, und Trusses made to order.
November 15, 1890.
Trains Leave and are due to
Arrive at Sacramento.
LEAVE i TRAIITS RUB DAILY. jABRIVE
6:15 Al CalUtosra and Napa 11:40 A
3:05 P Calistoga and Napa 8:40 P
12.50 A ...Ashland and Portland... 5:55 A
4:30 P Deming, El Paso and East 7:00 P
7:30 P, Knights Landing 7:10 A
10:50 A' Los Angeles 8:50 A
iOgden and East—Second
12:05 Pi Class 2:25 A
ICcntral Atlantic Express
11:00 Pi for Ogden and East 8:15 A
3:00 Pi Oroville 10:30 A
3:00 P Red Bluff via Marvsville.. 10:30 A
10:40 A Reddins via Willows 4:00 P
2:25 A San Francisco via Benicia 11:40 A
6:15 A Sau Francisco via Benicia 12:35 A
8:40 A San Francisco via Benicia 10:40 P
3:05 P San Francisco via Benicia 8:40 P
*10:00 A San Francisco via steamer 26:00 A
10:50 A San Franc'o via Livermore 2:50 P
10:50 A! San Jose 2:50 P
4:30 P Santa Barbara 8:50 A
6:15 A Santa Rosa 11:40 A
3:05 P Santa Rosa 8:40 P
8:50 A Stockton and Gait 7:00 P
4:30 P| Stockton and Gait 8:50 A
12:05 Pj Truckee and Reno 2:25 A
11:00 P Truckee and Reno 8:15 A
12:05 P Colfax 8:16 A
6:15 A Vallejo 11:40 A
3:05 P Vallej< t8:40 P
*6:35 A ...Folsom and Placerville... '-"2:40 P
♦3:10 Pj-Folsom and Placerville... *11:35 A
*Suuday excepted. -"-Sunday ouly. JMon
day excepted. A.—For morning. P.—For
RICHARD GRAY", Gen. Traffic Manager.
T. H. GOODMAN, General Passenger and
ND. GOODELL AND F. H. SCHARDIN
. have associated themselves together aa
Architects and Builder:.. Office. Pioneer Hail,
Seventh street, between J aad K, Sacramento,
Cal. Consultation and estimates made free of
MRS. MARION STIRLING. K. D.,
LATE LADY PRINCIPAL OF DUFFERIN
Medical College for Women, and Superin
tendent of Women's Hospitals and Dupen
saries In Northern British India. Diseases of
women and children a specialty. OFFICE—
Room 7, Odd Fellows' Temple.
H. F. EOOT. ALEX. KEELSON. J. DEISCOL.
ROOT, NEILSON _ CO.,
UNION FOUNDRY—IKON AND BRASS
Founders and Machinists. Front street,
between N and O. Castings end machinery of
every description made- to order.
CHARLES H. 0 ATM AN,
A TTORNEY AND COUNSELOR AT LAW,
A Oflice—42o J street, Sacramento, Cal.
ATTORNEY AND COUNSELOR AT LAW
—Office over Wells, Fargo & Co.'s, NE. cor.
Second and J streets, Sacramento, Cal.
A L HART
A TTORNEY-AT-LAW—OFFICE : SGUTII
iI west corner Filth and .1 streets. Rooma
12,13 and 14, Slitter Building.
ATTORNEY AND COUNSELOR AT LAW.
Southwest corner Seventh and J streets;
Notary Public. Collections. (Sacramento, Cal.
T. f. TEBBETS? "
DENTIST, 914 SIXTH ST.,^^^^jjb
between I nnd .1. west vi< 1 • \fTf©2EKHL
opposite Congregational Church. fjuP
DR W. C. REITH,
DENTIST. LINDLEY IJUII.D
iiiir, southeast corner S, \-&#^S&a
enth and J streets, Sacramento ffjnjGvSSfea
C. H. STEPHENSON,
DENTIST. CORNER NEV-^ggjpSfe
enth and .1 streets, over l.v-UTYf&SI&jgL
on's Dry Goods Store. "
FRED. H. METCALF. D. D. S.,
IS PREPARED TO PERFORM ALL THE
latest operations pertaining to tiie profes
sion. Southwest corner of Eighth and J
Jixttito, g*ce2>», $Jr*»fcucc, (fbtc.
CULTIVATED WHITE WILD OATS
And ALFALFA SEED in lots to suit.
W. H. WOOD & CO.,
Nos. 117 to 125 J Street, Sacramento.
S. GERSON & CCXT
Fruit, Produce and Commission Merchants,
P. O. Bo_ 170.
CURTIS BROS. & CO.,
SENERAL COMMISSIOH MERCHANTS,
Wholesale Dealers in Fruit and Produce,
308, 310, 312 K St., Sacramento.
Telephone 37. Postofflce Box 335.
W. R. STRONG CO.,
Wholesale Fruit and Produce Dealers,
ITCGEN-P. JT. GREGORY. FHANK GREGORY.
GREGORY BROS. CO.,
SUCCESSORS TO GREGORY, BARNES A
00.. Nos. 126 and 128 .1 St., Sacramento,
wholesale dealers in Produce and Fruit. Full
stocks of Potatoes, Vegetables. Green and
Dried Fruits, Deans, Alfalfa, Bntter, Eggs,
Cheese, Poultry, Etc., always on hand. Orders
filled at LOWEST RATES.
gtqttorg, ffllinc, $cev, <&U.
Finest Lunch House in the City,
CAPITAL ALE VAULTS, NAGELE St.
SVENSSON, Proprietors. Lunch from 11
a. m. to 2 p. st. Clam Chowder and Mussel
Soup every evcniiiK from G to 12 o'cloclt.
CONCORDIA BEER HALL,
No. 1021 Fourth Street.
HAVING JIADE EXTENSIVE IMPROVE
ments the public are now cordially in
vited to a first-class resort. Sandwiches of all
kinds. Buffalo Beer on drausrht and in bot
tles. The finest Wines, Liquors and Cigars oa
hand. H. KOiI.NI-:. Proprietor.
110-118 K Street, Front and Second,
IMPORTERS AND WHOLESALE DEAL
ers in. Wines and Liquors. Agents for tho
celebrated Pommery and Greno Champagne.
930 K St., ami 11 OS-1 HO Third St.,
IMPORTER AND WHOLESALE DEALER
in Fine Whiskies, Brandies and Cham
Xo. 417 K Street. Sacramento, Cal.,
IMPORTER AND WHOLESALE DEALER
. in line Wlii*klos, Brandies, Wines and
Iciuors. Thanking my old frleniis and pa
trons for their former patronage, I solicit :i
continuance of the same. All orders wtll be
promptly and carefully filled.
FRIEND & TERRY
MAIN TARD AND OFFICE. 1310 SEO
ond street. Branch Yard, corner Twellth
_ J streets.
MRS. A. HUNTER (NEE HATTIE J. BALD
win) will reopen her private kimdeisarten
,at 1515 Thirteenth st- January sth, d3l-2W