be assumed that he had the ability at the time of the execution of the contract to make the deposit of bonds therein provided for; that he voluntarily delayed doing so, and thus disabled himself from performing his contract obligation. Defendant's answer contains allegations to the contrary, but no evidence was offered to support them and the findings negative their truth. Under the doctrine of the above cases, plaintiff had the right to treat the contract as terminated with regard to such obligation and to maintain an action at once for the damages occasioned by such breach of contract. Appellant's contention that this rule applies only "in those instances where the refusal to perform, or the renunciation of the contract is absolute and unequivocal and goes to the whole contract" is not sustained by the authorities. In the case relied upon by appellant in support of that position, it is said: "To justify such a course of procedure there must be a failure in some substantial particular, which goes to the essence of the contract, and renders the defaulting party incapable of performance, or makes it impossible for him to carry out the contract as intended." (Krebs Hop Co. v. Livesley, 51 Or. 527, 533, [92 Pac. 1084, 1086], affirmed in 59 Or. 574, [Ann. Cas. 1913C, 758, 114 Pac. 944, 118 Pac. 165].) The failure of defendant to deposit the bonds was a failure in a substantial particular which went to the essence of the contract. His delay in making such deposit, and resultant inability so to do, made it impossible for him to carry out the contract as intended. The authorities also sustain the position. that an act of the promisor which disables him from making performance, as well as a formal renunciation of the contract, is within the rule above stated.

[5] The contention of appellant that plaintiff's cause of action was limited to the recovery of damages for failure to make the deposit of the bonds does not justify the conclusion that the recovery herein was unwarranted. The argument is that in such an action the damages must be based upon the value of the bonds at the time of the breach, and that no proof of such value is contained in the record. Under the language of the contract, as construed by appellant, the deposit of the bonds should have been made immediately upon the execution of the contract, and the failure to do so constituted a breach at that time. Paragraph third

of the contract, which by special reference is made a part of the complaint, provides that it was distinctly understood between the parties that the "bonds are taken in this agreement as being the equivalent of sixty thousand dollars." This agreement furnished evidence of the value of the bonds at the time of the breach. The complaint contains allegations of failure on the part of defendant to deliver the bonds, and of damage in the sum of sixty thousand dollars. These allegations may be regarded as stating a cause of action for damages arising from the failure of defendant to make the deposit of bonds. Under that theory the evidence is sufficient to support the judgment. (Henry v. North American Ry. Construction Co., 158 Fed. 79, [85 C. C. A. 409].)

The judgment is affirmed.

Langdon, P. J., and Brittain, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 25, 1919.

All the Justices concurred.

[Crim. No. 668. Second Appellate District, Division One.-July 29, 1919.].

THE PEOPLE, Respondent, v. THOMAS F. LUTTRELL, Appellant.

[1] CRIMINAL LAW-MURDER-DEGREE OF CRIME-EVIDENCE-PROVINCE OF APPELLATE COURT.-The appellate court, though it may conclude after examining the testimony introduced at the trial in a prosecution for murder that had it the duty to try the question anew upon the evidence, it would be most apt to conclude that the defendant's crime, considering the extreme provocation under which he acted, was not greater than that of manslaughter, it has no function to perform in the way of re-examining the facts, except in so far as it may be necessary to consider them in determining the matters of law which are the only subjects entitled to be reviewed on appeal.

[2] ID.

SELF-DEFENSE-INSTRUCTIONS.-In this prosecution for murder, the court having fully instructed the jury that if the defendant believed as a reasonable man that he was about to suffer great bodily injury at the hands of the man whom he killed, he was justified in using his deadly weapon and killing his antagonist, did not commit error in refusing to give the instructions on the law of selfdefense as requested by the defendant.

APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. J. A. Allen, Judge. Affirmed.

The facts are stated in the opinion of the court.

Farnsworth, McClure & Burke for Appellant.

U. S. Webb, Attorney-General, and Joseph L. Lewinsohn, Deputy Attorney-General, for Respondent.

JAMES, J.-Defendant was convicted of the crime of murder in the second degree. The appeal is taken from the judgment of imprisonment which followed the conviction, and also from an order denying defendant's motion for a new trial.

On the tenth day of December, 1918, at the town of Lemon Cove, county of Tulare, an altercation occurred between defendant and Vernon French, a young man about the age of twenty-one years. French was killed by being shot by appellant. At least three bullets were fired into the body of French. French at the time was unarmed. From this brief preliminary statement it might be inferred that the shooting of French by appellant was an act of wanton and deliberate murder. But from what will be stated immediately hereinafter it will appear that the appellant only shot after he had been annoyed, abused, and cursed upon his own premises; that he had sought to avoid a physical encounter with French, who was there with the evident purpose of provoking and engaging in a fist-fight with appellant; that the deceased not only abused and vilified the appellant, but, after challenging him to a fist-fight, called him a coward and dared him to shoot. [1] To this further statement we may here add, after carefully examining the testimony introduced at the trial, that had this court the duty to try the question anew upon the evidence, we would

42 Cal. App.-29

be most apt to conclude that defendant's crime, considering the extreme provocation under which he acted, was not greater than that of manslaughter. However, we have no function to perform in the way of re-examining the facts, except in so far as it may be necessary to consider them in determining the matters of law which are the only subjects entitled to be reviewed on this appeal.

The main points urged on the part of the appellant are that the refusal of the court to give certain offered instructions was error. It will be appropriate to make a further statement more fully showing the facts affecting the cir cumstances of the shooting: The appellant at the time of the alleged homicide resided at the town mentioned with his family; he was engaged in operating stages from that point to the Sequoia National Park. In the operation of this business he used automobiles and carried passengers and mail. The deceased, French, had been employed by him, but on the day preceding that of his death had refused, during the absence of appellant, to convey three passengers who desired transportation to a grading camp. For that reason appellant had discharged him the following morning, through the mouth of another person, to whom he gave the wages due to French and which were apparently delivered by the messenger. Some days prior, while making change with a customer, appellant had borrowed fifty cents from French. On the morning of the tragedy appellant brought a truck into the barn or garage used and owned by him, for the purpose of having a mechanic make some small repairs thereon. This mechanic operated a garage near by and had just returned to appellant's place with another machine upon which he had been working. Up to this point there appears to be no dispute in the facts-there is little dispute made at all in the case, except as to the final actions of French immediately before he was shot. To that matter we will advert later. The main story, as told by an eye-witness, was that after appellant came in with the truck and dismounted therefrom, French appeared inside the door of the building; that appellant approached him and that French said to appellant: "When are you going to pay me that four bits?" that appellant asked, "What four bits?" and was then reminded of the fifty cents which French had loaned to him; that appellant immediately replied he had forgotten that, that he would pay it; without more ado

French, after the introductory question, "You know what I think of you?" began to curse appellant and to apply to him the vilest epithets which his vocabulary afforded, and it appeared that his command of language was not at all restricted in that direction; French advanced toward appellant, whereupon appellant drew a revolver and pointed it at French and retreated from him; French took off his coat, laid it down, and dared appellant to come outside and fight; the challenge to fight was repeated and he followed after appellant, who retreated toward the rear of the building, pistol in hand, until he reached the wall; he went through a rear door, which was a swinging contrivance, and disappeared from the sight of the eye-witness within the building; French hesitated a moment and followed after him, but nothing more was heard outside. By appellant's testimony it appears that he went home and procured from his wife the fifty cents owing to French and returned with it; at any rate, the eye-witness soon saw French reappear at the front door and shortly thereafter appellant came in and offered him the fifty cents; again French entered upon his tirade, cursing the appellant, calling him again vile and unmentionable names, and again appellant drew his pistol, which he pointed at French. This time, it can be gathered that appellant moved toward French and that French moved toward and through the front door of the building. While these actions were being performed appellant was telling French that he wanted him to go away, that he wanted nothing to do with him, and wanted him to leave his premises. It may be here said, too, that appellant had, before retreating through the rear door, requested French to leave; also that, when being cursed by the deceased, he had returned the compliment by calling him names of similar character to those first used by French. As the eye-witness observed, after French had retreated through the door, his general action was to move away from appellant; that after he got through the door he dared appellant to shoot, telling him that he was afraid to shoot, that he had "a streak of yellow" in him. Thereupon the appellant, standing at the door, declared that he was not afraid to shoot and that he would shoot, and thereupon he fired several shots, at least three, all of which apparently took effect in the body of French, as a result of which wounds he