ent had power to execute notes for the corporation, it would be the note of the corporation, notwithstanding the words "we promise. If we reject the words subscribed to the note in suit, John E. Mason, superintendent," whose note is it? Would the words "Pioneer Mining Company" not accompanied by any words indicating by whom they were written establish a liability on the part of the company? Immediately below the words is written "John E. Mason, sup't." Shall we say the omission of the word "by" or "per" renders the instrument unmistakably the note of Mason? The signature is not "John E. Mason, superintendent of the Pioneer Mining Company," the last portion of which, in the absence of any words in the body of the note indicating the intention that it should be an obligation of the company, might, it is claimed, be held to be merely descriptio persona. But here the words "Pioneer Mining Company," precede the name "John E. Mason." It would seem, however, that even had he subscribed his proper name, with the addition "Superintendent Pioneer Mining Company," while prima facie, he would be liable personally, he would be authorized to rebut the presumption, as between himself and the payee, by proof that the note was, in fact, given by him as agent of the company, with the payee's knowledge of the fact: Abbott's Trial Ev., 402. Mr. In Mechanics' Bank v. Bank of Columbia, the question was whether the drawing of a certain check, by one who was cashier of a bank, was his individual act or his official act as cashier. justice Johnson said: "It is enough for the purposes of the defendant to establish that there existed on the face of the paper circumstances from which it might reasonably be inferred that it was either one or the other. In that case it became indispensable to resort to extrinsic evidence to remove the doubt:" 5 Wheat., 336. Whether, in the case before us, the note was the promise of Mason, or the promise of the company, by Mason claiming to act as its agent, was ambiguous, at least, and an inquiry into the circumstances might render it certain whose promise, if any person's, it was: Metcalf v. Williams, 104 U. S., 180. It is perhaps unnecessary to inquire whether the form of the note was sufficient to charge innocent holders with notice of its character. Here the payee named in the note is plaintiff, and we think evidence was admissible that it was understood by plaintiff to be the note of the company, and that the consideration for which it was given passed to the company. For the purpose of showing the real party to a contract (where the contract suggests the existence of circumstances which render it doubtful), conversations of the parties to the transaction at the time of making the paper, and at the time of creating the consideration for the bill or note, are admissible as part of the res gestae: Goodwin v. Robarts, 10 L. R. Exch., 337; S. C., 14 Moak's Eng., 591. Mr. Abbott says: "If upon the face of the instrument there are indications suggestive of agency-such as the addition of words of office or agency to the signature, or the imprint of the corporate title on the paper, parol evidence is competent to show who the parties intended should be bound or benefited. And even where the contract bears no such suggestion on its face, the rule as now generally received is that parol evidence is competent, either in favor of or against the corporation (except, perhaps, when the instrument is a specialty); but that it is not competent for the purpose of exonerating the signer from personal liability, if the other party to the instrument chooses to hold him personally liable, unless there was evidence that the signer was duly authorized to contract for the corporation, and that credit was actually given to the corporation alone:" Trial Ev., 37. Even if it could be said that there were no indications suggestive of agency on the face of the note herein sued, evidence was admissible tending to prove that the consideration for the note was received by the Pioneer company, and the credit extended to the company alone. The absence of proof of the other circumstance-his actual power to act for the corporation-would not render Mason personally liable, under the decisions in this state. If it was known to the payee that the note was given by Mason, as superintendent of the company, and in recognition of an indebtedness of the company, Mason is not bound on the note, even if he had no power to execute the instrument for the company: Blanch v. Kaull, 44 Cal., 440; Lander v. Castro, 43 Id., 497; Hall v. Crandall, 29 Id., 568. Judgment and order affirmed. MCKEE, J., and SHARPSTEIN, J., concurred. No. 20,056. PEOPLE. BOURKE. In Bank. Filed February 25, 1885. INSTRUCTIONS-REFUSAL TO GIVE WHEN NOT GROUND FOR REVERSAL.-The refusal of the court to give an instruction requested will not warrant a reversal, in the absence of the evidence and the instructions given. THE SAME ORAL INSTRUCTIONS IN CRIMINAL CASE-EFFECT OF.-Oral instructions in a criminal case will not warrant a reversal, unless it affirmatively appears that such instructions were not taken down by the phonographic reporter, as required by section 1,093 of the penal code. In the absence of evidence to the contrary, the presumption is that the instructions were so taken down. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered upon a verdict convicting the defendant of robbery, and from an order denying him a new trial. The opinion states the facts. J. D. Whaley, for the appellant. Attorney General, for the respondent. MORRISON, C. J. This case comes before us without any of the evidence given on the trial, and without any portion of the court's charge to the jury, and we are asked to reverse the judgment on two grounds: first, because the court erred in refusing to give an instruction asked by the defendant, and, secondly, because the court gave an oral charge to the jury. The instruction requested was the following: "Under this information, according as the evidence satisfies the jury, the following verdicts may be found: "1. Guilty of robbery. "2. Guilty of grand larceny. "3. Guilty of an attempt to commit robbery. "4. Guilty of an attempt to commit grand larceny. "5. Guilty of an assault with an intent to commit robbery. "6. Guilty of an assault with an intent to commit larceny. "7. Guilty of an assault. "8. Guilty of petit larceny. "9. Not guilty.' The defendant was charged with the crime of robbery, and was found guilty of that crime. But, as the evidence is not before us, we cannot say that the instruction should have been given, even if it is the law. Unless there was some evidence in the case upon which the instruction asked was properly predicated, it was right in the court to refuse it: People v. Sanchez, 24 Cal., 17; People v. Williams, 43 Id., 344; People v. Strong, 46 Cal., 302. And it may be that the instructions given fully covered all the points in the case which properly arose. under the evidence. In the absence of the evidence and the instructions given, we are not able to say that there was error. The transcript shows that the court gave an oral charge to the jury. It has been held in several cases that an oral charge without the consent of the defendant was error, but since those decisions were made the penal code has been amended. By section 1,093 of the penal code, it is provided that "if the charge be not given in writing, it must be taken down by the phonographic reporter." It does not affirmatively appear in this case that the charge was not taken down by the phonographic reporter, and we are asked to presume that it was not, for the purpose of reversing the judgment. But the presumption is the other way, as was held by this court in the case of The People v. Ferris, 56 Cal., 442. In that case this court say: "It is objected that the court orally instructed the jury. * * The statute authorizes such instructions to be given to the jury in a criminal case, if taken down by the short-hand reporter. The legal presumption is, that that was done. It is for the defendant to overcome that presumption. He must affirmatively show error; the court will not presume it. There appears no error in the record, and the judgment and order denying a new trial are affirmed." It may not be improper to remark that, on defendant's motion for a new trial, the last point was not made, which fact is strongly corroborative of the presumption that the charge of the court was taken down by the phonographic reporter, and the provisions of section 1,093 of the penal code fully complied with. Judgment and order affirmed. MYRICK, J., SHARPSTEIN, J., THORNTON, J., MCKEE, J., Ross, J., and MCKINSTRY, J., concurred. No. 9,944. SNOW v. SUPERVISORS OF STANISLAUS COUNTY ET AL. Department Two. Filed February 25, 1885. MANDAMUS-ORIGINAL APPLICATION SHOULD BE MADE IN SUPERIOR COURT.-The supreme court will not entertain a petition for a writ of mandate in behalf of an alleged supervisor to compel a board of supervisors to admit and allow him to exercise his office, until he has exhausted his remedy in the court below. The fact that the petitioner was defeated in a contest for such office in the superior court, is not sufficient to excuse him from bringing his application there, if, subsequent to the judgment in the election contest, there had been a change of the judge of such court. APPLICATION for a writ of mandate to compel the defendants to admit the petitioner as a member of the board of supervisors, and to allow him to exercise his office as such. The petitioner had previously been a party to a contest to determine his right to such office, in which he was defeated. Subsequent to the judgment in such election contest, and prior to this application, there had been a change of the judge of the superior court. Schell & Bond, for the petitioner. Wright & Hazen, for the respondent. THE COURT. In this case the petitioner can bring his action for the writ of mandate in the superior court for the county above named. The reasons assigned for not bringing it in that court are insufficient, as there has been a change of the judge of that court since the judgment was rendered in the contested election case of Reynolds v. Snow. In accordance with the rule of this court the petitioner must seek his remedy in the superior court. Application denied and proceedings dismissed. No. 8,764. JONES ET AL. v. WADDY ET AL. Department One. Filed February 26, 1885. DECLARATION OF HOMESTEAD-STATEMENT THAT DECLARANT IS HEAD OF FAMILY HOW MADE. Under section 1,263 of the civil code, as amended in 1874, a declaration of homestead need not contain a statement of the facts showing the declarant to be the head of a family. The mere statement that the declarant is "the head of a family" is sufficient. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiffs. The opinion states the facts. W. C. Burnett and B. B. Newman, for the appellants. MCKEE, J. The only question in this case relates to the sufficiency of the declaration of homestead upon which the court below adjudged that the land in dispute was exempt from execution, levy and sale, and enjoined the defendant from selling it under an execution issued upon a money judgment, which had been recovered in the year 1882, against the plaintiff, James Jones. It appears that on the fourteenth of April, 1880, the plaintiff, James, being then the husband of Julia Jones, his coplaintiff, selected the land in dispute as a homestead, by a declaration of homestead, which he executed, acknowleged and had recorded as required in section 1,262 of the civil code. The statement in the declaration is as follows: "I, James Jones, do hereby certify, make known and declare, that I am the head of a family, that I am residing with my family on the premises hereinafter described, and that I claim said premises, with the dwelling house thereon, as a homestead." This statement is followed by a correct description of the premises and an estimate of their actual cash value. Objection was made that the declaration did not contain a sufficient statement of facts showing the declarant to be the head of a family, and that is the question argued on the appeal. A statement of such facts was not required by the law under which the declaration was executed. It was required by section 1,263 of the civil code, before the section was amended in the year 1874. By the original section it was provided: "The declaration of homestead must contain: "A statement of the facts that show the person making it to be the head of a family." But in that particular the section was amended in 1874 so as to read as follows: "The declaration of homestead must contain: "A statement showing that the person making it is the head of a family." From the phraseology of the amendment, it is manifest that the legislature intended to dispense with "a statement of the facts," in a declaration from which the ultimate fact might be judicially inferred, and to require instead a simple statement or recital of the ultimate fact. Under the law as amended, the homestead in this case was selected, and the declaration, "I am the head of the family," is the statement of a fact, and that fact, in connection with the other facts, which are admitted to be sufficiently stated, show that the declarant was, at the time of making the declaration, qualified, according to the homestead law, to make the selection of the homestead, and that the land selected possessed the statutory qualities for that purpose. |