spondent and the judgment of the trial court is, that the damage suffered by plaintiff by reason of such failure thereof is to be based upon the maximum amount specified in said offer of sale. Our contention in this matter is that any damage that may have occurred can only be based upon the minimum amount as specified therein." Resulting from appellants' view of the case, their claim is "that the judgment in this case should be modified and reduced from the sum of $615.60 to the sum of 77.60."

What, then, is the rule governing alternative obligations? Counsel seem to have explored the cases and the text-books with diligence for light, and the written opinion of the learned trial judge shows that he examined with much care the authorities upon the question. The provisions of our Civil Code seem to have been overlooked, although they apparently state the rule applicable to the present case:

"If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation." (Civ. Code, sec. 1448.)

"If the party having the right of selection between alternative acts does not give notice of his selection to the other party within the time, if any, fixed by the obligation for that purpose, or, if none is so fixed, before the time at which the obligation ought to be performed, the right of selection passes to the other party." (Id., sec. 1449.)

"The party having the right of selection between alternative acts must select one of them in its entirety, and cannot select part of one and part of another without the consent of the other party." (Id., sec. 1450.)

[1] Referring to the number of turkeys to be delivered, the language of the obligation is, "numbering from two hundred head up to twelve hundred," and as to the time of delivery the obligation is, "between now [its date] and Thanksgiving" (November 29th). Plainly, the statute gave defendants the right to deliver any number of turkeys from two hundred to twelve hundred "between" the date of the obligation and November 29th. Defendants, admittedly, neither offered to nor did deliver any number of turkeys "between now and Thanksgiving," or at all, but, as the

court found, refused to deliver any. In such case, by the terms of the statute, "the right of selection passes to the other party." It is not necessary to resort to text-books or to the decisions of the courts. Sufficient to say, however, that our code states the rule accepted generally by writers upon the law of contracts and by the courts. We agree with the statement made by the learned trial court in the concluding paragraph of his written opinion:

"In this case there being no pretention that performance was even as much as attempted, it seems that under wellrecognized principles of equity the defendant should not be permitted to limit his liability to the minimum delivery required by this agreement. To do so would allow the most flagrant abuse of such an agreement."

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.

[Civ. No. 1934. Third Appellate District.-July 11, 1919.]

ETHEL JULIA WARD, as Administratrix, etc., Respondent, v. SOUTHERN PACIFIC COMPANY a (Corporation), Appellant.

[1] NEGLIGENCE-ATTEMPT TO AVOID DANGER-INJURY-CONTRIBUTORY NEGLIGENCE.-A foreman may not be charged with contributory negligence because, in seeking to escape the danger from a heavy timber caused to fall toward him through the negligence of the employees under him, he changes his position and brings himself in contact with such timber and consequently loses his life. [2] ID.-ACTION FOR DEATH-EVIDENCE-VERDICT.-In this action for damages for the death of the husband of the plaintiff through having been struck by a falling timber while engaged in tearing down and removing certain snowsheds along the line of the defendant railroad company, the jury was justified in concluding that death was due to the negligence of the defendant through its servants in violating the orders given by the deceased.

[3] ID. ALLEGATIONS OF Loss-SUFFICIENCY OF COMPLAINT.-In an action for damages for the death of the husband of the plaintiff, an allegation that the plaintiff "has been damaged through the negligence of said defendant and by the death of her husband" in a stated sum is a sufficient allegation of pecuniary loss on the part of plaintiff in the absence of objection thereto in the trial court.

[4] ID. NEGLIGENCE OF WORK MEN-DUTY OF FOREMAN TO ANTICIPATE. A foreman is not required, as a matter of law, to anticipate that workmen employed under him will act negligently, and his right of recovery for injuries received will not be barred by their negligent acts. (Opinion of district court of appeal on denying rehearing.)

APPEAL from a judgment of the Superior Court of Sacramento County. Charles O. Busick, Judge. Affirmed.

The facts are stated in the opinion of the court.

Devlin & Devlin for Appellant.

Hyman Zagoren, Downey, Pullen & Downey and A. M. Seymour for Respondent.

BURNETT, J.-The action was for damages for the death of Joseph G. Ward, the husband of plaintiff, and the jury found a verdict in her favor for the sum of four thousand five hundred dollars. The particular acts of negligence on the part of defendant upon which the action was based are set out in the complaint as follows: "That on and prior to the nineteenth day of May, 1916, the said defendant was engaged in the business of interstate commerce as a common carrier of freight and passengers in the county of Placer, state of California; that at said time said defendant was engaged in tearing down and removing certain snowsheds along its railroad line near Immigrant Gap, in said county; that on said day, and immediately prior thereto, said Joseph G. Ward, deceased, was employed by said defendant as foreman of certain other employees of said defendant who were. engaged in said work upon said snowsheds; that on said day there were two other employees of said defendant, whose

true and correct names are unknown to this plaintiff and are therefore styled as John Doe and Richard Roe, who were engaged in throwing certain pieces of timber from the top of said snowsheds to the ground after removing them from said snowsheds; that while engaged in throwing said timber from the snowsheds to the ground as aforesaid, the said employees, John Doe and Richard Roe, so carelessly and negligently conducted themselves as to cause said timber which they were throwing to the ground to fall in an opposite direction from that to which they had been directed to throw it, thereby causing said timber to fall against an upright post, a portion of said snowsheds, causing said upright post to be broken away and knocked loose from the supports which maintained said upright post in an upright position. That immediately prior thereto the said Joseph G. Ward, deceased, had caused a rope to be tied to the upright post last above referred to and had caused said rope to be wound loosely around another upright post, situate about twenty feet, more or less, north of the upright post first hereinabove mentioned; that at the said time last mentioned the said Joseph G. Ward, deceased, instructed and directed another employee of said defendant, whose true and correct name is unknown to the plaintiff and who is therefore styled as Peter Smith, to manage and hold the other end of said rope in such manner as to control the falling of the upright post to a point designated by the said Joseph G. Ward, deceased; that at the time said upright post was broken away and knocked loose from its supports, through the carelessness and negligence of the said John Doe and Richard Roe, as above mentioned, the said Peter Smith so carelessly and negligently conducted himself as to cause said upright post first above mentioned to fall upon the said Joseph G. Ward, deceased, whereby the skull of the said Joseph G. Ward was fractured and death ensued therefrom almost immediately thereafter." The claim is thus apparent that two acts of negligence concurred in producing the unfortunate result; one being the careless removal of the timber from the top of the snowshed, and the other the improper use of the rope attached to the upright, which fell against the deceased and caused his death.

The following diagram and reference points will tend to elucidate the situation:

A-Main line track.
B-Siding track.
C-Turntable track.
D-Switch.

E-Where Ward ran to when timber
started to fall.

F-Upright which fell.

G-Cross-beam which De Neef and
Clark rolled off.

H-End of cross-beam where De Neef
was working.

I-Upright supporting north end of cross-beam "G.'

J-Upright to which Marsh tied rope. K-Joist upon which De Neef was sitting while rolling off crossbeam "G."

L-End of cross-beam where Clark was working.

M-Where plate broke when upright "F" fell.

O-Where Ward was struck by post.

Of the undisputed facts, we may state that the two employees engaged in removing the timber from the top of the snowshed, named Clark and De Neef, at the time of the accident, were using crowbars to detach a beam, sixteen feet in length and weighing seven hundred pounds, from the top of two uprights twenty-two feet from the ground and each upright weighing about four hundred pounds. These uprights and the beam were standing on a north and south line. Clark, seated on a support near the top of the southern upright, was working at the south end of the beam, and