could be brought. Kelly, C. B., said: "It appears to me that to decide to the contrary would be to disregard entirely the obvious intentions of the parties, expressed in words, which state emphatically that before the loss is paid its amount shall be adjusted.' And the same learned judge thus deduces, from the cases called to his attention, a general rule: "The fair result of the authorities is, that if the contract is in such terms that a reference to a third person is a condition precedent to the right of the party to maintain an action, then he is not entitled to maintain it until that condition is complied with; but if, on the other hand, the contract is to pay the loss, with a subsequent contract to refer the question to arbitration, contained in a distinct clause collateral to the other, then that contract for reference shall not oust the jurisdiction of the courts."

Martin B. and Pigott B. agreed with the chief baron, Bramwell B. differed as to the application of the rules to the case before the

court.

In Scott v. Avery (where Mr. Bramwell, as counsel, argued in favor of the conclusion reached by the House of Lords), the words in the contract were "the sum to be paid by this association to any suffering member shall in the first instance be ascertained by the committee." In Elliott v. R. E. Ins. Co., they were that the loss "after the same shall be adjusted, shall immediately be paid." In the former case the House of Lords held that the ascertainment of the loss by the committee or by arbitration was a condition precedent, and that without such ascertainment the plaintiff had no cause of action. In the latter case the court could not see any distinction which would justify them in holding that the adjustment of the loss, as provided in the articles, was not a condition precedent.

In the case at bar, by express provision of the policy, the defendant's stock and funds are made liable, "subject always to the conitions and stipulations endorsed hereon," etc. Referring to the nditions and stipulations, which qualify the general promise to pay in case of loss, we find: The defendant was not bound to pay til the declaration or affirmation, account and evidence therein provided for should be produced. That on proof of loss and adJustment of accounts, the company was bound to pay immediately, or, at its option, to rebuild; and that in case of difference of opinion as to the amount of loss or damage, such difference should be submitted to the judgment of two disinterested and competent men, mutually chosen, etc.

We think the language of the stipulations brings this case within the principle laid down in the English case above referred to; that it is the clear meaning of the contract, that if the amount of loss cannot otherwise be adjusted to the satisfaction of the parties, it shall be adjusted by the mode of arbitration therein prescribed, and that until such adjustment, or a fair effort on the part of the insured to obtain it, no cause of action arose.

The rule as to the interpretation of contracts involving the question above considered, is clearly laid down in Holmes v. Richet, 56 Cal., 307.

Judgment and order affirmed.

Ross, J., and MCKEE, J., concurred.

No. 8.229.

POLACK ET AL. v. GURNEE ET AL.

Department One. Filed December 20, 1884.

ADVERSE CLAIM TO REAL PROPERTY-ACTION TO DETERMINE.-In an action to determine an adverse claim to real property brought by the person in possession, a judgment in favor of the plaintiff, may provide for his restitution to the premises, if, pending the action, the defendants have been put in possession under a writ issued in another action. Such action is equitable in its nature.

THE SAME-WAIVER OF JURY.-Where a case has been set by consent for trial before the court, and afterwards came on regularly for trial before the court, without a jury, and the trial actually began, a jury is waived, and cannot subsequently be demanded as of right.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiffs, and from an order denying the defendants a new trial. The opinion states the facts.

W. H. L. Barnes, for the appellants.

James F. Stuart, for the respondents.

Ross, J. As the bill of exceptions in this cause, which consists of six hundred and thirteen pages of printed matter, most of which has no place in a bill of exceptions, contains no specifications calling in question the findings of fact made by the trial court, we must accept as conclusively established the facts set out in the findings. In view of those facts, that neither defendant Gurnee nor defendant Chapman acquired any title to or interest in the premises in con troversy by virtue of the patent issued by the United States on June 1, 1869, to Daniel Freinere, and mesne conveyances thereunder, was shown by this court in the case of Chapman v. Polack, 58 Cal., and by the United States circuit court of California in the case of United States v. Chapman, reported in 5 Sawyer, 528. And the reason of those cases applied to the facts now, as well as then, ap pearing, sustain the title of the plaintiff Mrs. Polack to the dispu ted premises.

553

But it is urged on behalf of the appellants that the judgment giver by the court below is unwarranted by the pleadings, and further that the character of the action was, against the objections and ex ceptions of the appellants, allowed to be changed from one in equit to an ordinary action in ejectment. In this, counsel is mistaken The action has always been on the equity side of the court, and th gravamen of it has always been to determine the conflicting claim of the parties to the property in question. When the action wa

commenced, Mrs. Polack was in possession of the property through her tenant Susenbeth, who, with her husband, J S. Polack, were made co-plaintiffs with her. The patent under which the defendants claimed was then outstanding, and based upon it. Gurnee had then pending in one of the district courts of the state, an action of ejectment to recover a portion of the premises from Susenbeth. In contemplation of law there was not, under the averments of the complaint, nor is there upon the facts found in the case, any distinction between defendants Gurnee and Chapman. They occupy the same position. One of the purposes of the action, as originally commenced, was to enjoin, pending its determination, the prosecution of the action of ejectment brought by Gurnee against Susenbeth; and it was also sought thereby to have the patent under which the defendants claimed, declared invalid, or, if valid, that defendants be decreed to hold whatever title it conveyed in trust for Mrs. Polack, and be compelled to convey it to her. But, as already said, the main purpose of the action was to obtain a decree of the court, establishing the validity of Mrs. Polack's asserted title to the property, which was based upon certain selections made under and by virtue of the laws of the United States and of the state, and the invalidity of the title asserted by the defendants.

By various supplemental pleadings, the changes which occurred after the filing of the original complaint with respect to the property in controversy, and the claims of the respective parties thereto, were set out, chief among which was the fact, that in an action brought for the purpose by the United States in the circuit court for California, the patent under which the defendants assert title to the property was annulled and adjudged void, and the further fact that after the commencement of the action, the defendants were put in possession of the property under a writ of re-restitution issued out of one of the state courts, in an action of forcible entry and detainer, which action had been, before the commencement of the present one, brought by Mrs. Polack and others, to recover possession of the property from Gurnee, and in which the county court had given her judgment, under which she had been restored to the possession, but which judgment, was subsequently by this court, reversed, and afterwards, a writ of re-restitution issued out of the county court, under which the present defendants were put in possession and have since so remained.

But all this did not change the character of the action. It remained upon the equity side of the court, the main purpose of it being to procure the decree of the court determining the conflicting claims of the respective parties to the property-to have it determined that the title of the plaintiff, Mrs. Polack, thereto is good and that the asserted title of the defendants thereto is invalid. It is true thrt when the action was commenced, Mrs. Polack was in ossession, and that the defendants were subsequently restored to the possession under the writ of re-restitution issued in the forcible eatry and detainer action, and continued in possession to the time of

trial and entry of judgment herein. It was for that reason, doubtless, that the court below which adjudged the title of Mrs. Polack to the property in question good and that defendants have no right or interest therein, included an order for a writ of restitution in her favor for the recovery of the possession of the property from defendants. And this by reason of a section of the code of civil procedure, to which the attention of counsel does not seem to have been attracted, as we find no reference to it in the briefs on either side. It is section 380 and reads: "In an action brought by a person out of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and persons in possession may be joined as defendants, and if the judgment be for the plaintiff, he may have a writ for the possession of the premises, as against the defendants in the action, against whom the judgment has passed."

The reason of the rule that allows this to one who prevails in such an action when brought while out of possession, applies equally to one who prevails where, although in possession when action was brought, is subsequently and during its pendency, turned out of possession. Therefore, the claim put forth on behalf of appellants that the action was turned into one simply for the recovery of the possession of land is not well founded.

It is said that appellants were entitled to a jury trial. If it be conceded that in an action of this sort they were of right entitled to a trial by jury because the court, as an incident to the main relief awarded the plaintiff, was authorized to and did also give judgment for the possession of the property, yet the record shows a waiver of a jury trial. The bill of exceptions recites that the cause came on regularly to be heard on the third day of October, A. D. 1880, before the court sitting without a jury-both sides being represented by attorneys, whereupon the defendants moved for judgment on the pleadings, and the motion being denied, defendants' counsel said: "Then there being a prayer that they may be put in possession, I ask upon that a jury trial." The court properly refused it. The case was set down by consent of counsel for trial before the court, and afterwards came on regularly for trial before the court, without a jury, and the trial actually began. This was certainly a waiver of a trial by jury, conceding that defendants were of right originally entitled to one.

There was no prejudicial error in the admission in evidence of the documents to which objections were taken.

Looking at the whole case we think the judgment and order right.

Judgment and order affirmed.

MCKEE, J. and MCKINSTRY, J., concurred.

WEST COAST REPORTER.

WHOLE NO. 54.

JANUARY 8, 1885.

VOL. V. No. 2.

DISTRICT COURT, DISTRICT OF OREGON.

BARRETT V. OREGON RAILWAY AND NAVIGATION COMPANY.

December 23, 1884.

LIGHTERAGE-IF The Charterer "TO PAY," NOT "TO PROVIDE."-The bark "Carrie Winslow" was chartered to carry a cargo from New York to Portland for a lump sum-the charterer "to pay for the necessary lighterage between Astoria and the port of discharge: Held; that the charterer was not bound "to furnish" or "provide" the lighterage, but only "to pay for it; that the contract of the master being to bring the vessel with her cargo to Portland, he was bound to provide and employ the means necessary and appropriate to that

end.

LIBEL for demurrage. The opinion states the facts.

William H. Effinger, for the libellant.

Cyrus A. Dolph, for the defendant.

DEADY, J. This suit is brought by the master of the bark "Carrie Winslow," to recover one thousand six hundred and twenty dollars demurrage.

It is alleged in the libel, that in January, 1883, the vessel was chartered by the defendant at New York, to carry a cargo of railway iron and material from that port to Portland, Oregon, for the sum of fourteen thousand five hundred dollars, and that among other things the charter party provided that the vessel should be discharged "at Portland" with "dispatch," and that for each day's detention thereof caused by the default of the defendant, Sundays and legal holidays excepted, it should pay ninety dollars demurrage; and that "lighterage, if any, from Astoria to Portland, to be paid by the charterers, but no more cargo to be lightered than is necessary for the ship to proceed from said port of Astoria to Portland with safety;" that the vessel arrived at Astoria on August 5, 1884, from whence, owing to the stage of the water in the river, she could not be taken to Portland without being lightened; that the libellant applied to the defendant for lighterage, which it failed and refused to furnish, for eighteen days, although it had the means of doing so, whereby the vessel was detained at Astoria and prevented from discharging her cargo, for that period, within the meaning and contemplation of the charter party.

In the second article of the libel, it is alleged that the defendant at the making of the charter party, well knew that the vessel "would