Full opinion text
EDMONDS, J. Upon the application of the petitioner, who failed to pass the bar examination held in 1939, this court issued an alternative writ of mandate requiring the Committee of Bar Examiners and The State Bar to show cause why he should not be admitted to practice law in this state. He charges that although he passed the examination with a higher grade than 70 per cent, the board “arbitrarily and capriciously” reduced this to below a passing mark and refused to certify his name for admission to the bar. In support of his charge against the committee, the petitioner alleges that he “successfully completed the law course” of the University of Michigan in 1914, and also “successfully completed” a post graduate course in legal instruction at Southwestern University, Los Angeles. He also states, generally, that he has the legal learning and ability of the average candidate who successfully passes the bar examination of the State of California. More specifically, he alleges that he has been a commissioned officer in the armed forces of the United States and studied and passed the subject of military law, and that he has practiced before the Industrial Accident Commission with great success. In a supplemental petition, the petitioner has set out in full the questions asked of him, the answers given, and the grade assigned to each. These grades amount, in the aggregate, to 940 points as against the 1820 required to pass. In criticism of such marking, there is presented a certificate of Charles E. MeGinniss that he has read the petitioner’s papers and has assigned to his answers a total of 2,121 grade points, which is above the passing grade. Mr. MeGinniss states that he is a member of the California bar, that he has been a law editor and professor of law, and that in his opinion the petitioner “is educationally qualified to practice law in the State of California and elsewhere. ’’ By their return, the respondents deny that the petitioner’s answers were arbitrarily or capriciously graded. It specifically alleges that his answers to the questions asked of him were carefully, fully and completely read and graded by highly skilled readers who were chosen for their ability to do this work, and it sets forth in detail the methods under which the examination taken by the petitioner was carried on. It also alleges that the records of the committee show that the petitioner has taken eight examinations since the year 1926, and has passed none of them although each examination was determined on its own merits. It also denies that the petitioner successfully completed the regular academic course of law at the University of Michigan, asserting that although the petitioner was at one time a student there, he did not pass a sufficient number of subjects to entitle him to a degree. The allegations of the petitioner amount to nothing more than a general statement that his answers entitle him to a passing grade notwithstanding the grade given his papers by the Committee of Bar Examiners. He makes no charge of fraud, imposition or coercion, and does not assert that he was denied a fair opportunity to take the examination. Such a petition falls far short of the requirements laid down by this court in a proceeding to review the examinations given by the committee in 1933. At that time it restated the rule which had been adopted in a previous consideration of the question as follows: “The attitude of this court is that if any dissatisfied applicant can show that he was denied passage of the state bar examinations through fraud, imposition, or coercion, or that in any other manner he was prevented from a fair opportunity to take the examinations, this court will be willing to listen to his complaint. Inability to pass the examinations, which are successfully passed by other applicants, will, of course, not be inquired into by the court. Also, as you have no doubt found out, one’s general qualifications are not to be substituted for the requisite knowledge of law which one must possess in order to be admitted into the legal profession. ’ ’ (In re Admission to Practice Law, 1 Cal. (2d) 61, 64 [33 Pac. (2d) 829]. See, also, Salot v. State Bar, 3 Cal. (2d) 615 [45 Pac. (2d) 203]; Spears v. State Bar, 211 Cal. 183, 191 [294 Pac. 697, 72 A. L. R. 923].) The burden is on the petitioner to show wherein the determination of the board was incorrect or unfair, and this court will not assume from the statement concerning his general qualifications that it was impossible for him to receive the grades given by the Committee of Bar Examiners. The alternative writ of mandate is discharged and a peremptory writ denied. Gibson, C. J., Traynor, J., and Spence, J., pro tem., concurred.
HOUSER, J., Dissenting. I dissent. Section 6060 of the Business and Professions Code contains various provisions which relate to the qualifications necessary to be possessed by applicants for admission to practice law in this state, which provisions, among others, include the following requirements: That such applicants shall “Before beginning the study of law, have completed at least two years of college work or have reached the age of twenty-five years”; shall have either “Graduated from a law school accredited by the examining committee requiring substantially the full time of its students for three years . . . ; Graduated from a law school accredited by the examining committee requiring a part only of its students’ time for four years . . . ; Studied law diligently and in good faith for at least four years . . . ; [and] Have passed a final bar examination given by the examining committee”. The sub-title to section 6066 of the same code is “Appeal to Supreme Court”. The language of that section is as follows: “Any person refused certification to the Supreme Court for admission to practice may have the action of the board, or of any committee authorized by the board to make a determination on its behalf, pursuant to the provisions of this chapter, reviewed by the Supreme Court, in accordance with the procedure prescribed by the court.” (Emphasis added.) From the title of section 6066 and the language employed jn_ said section, it is clearly apparent that in enacting such provision it was the intention of the legislature to give to a rejected applicant for admission the right to “Appeal to [the] Supreme Court” from a “determination” or “action of the board, or of any committee authorized by the board to make a determination on its behalf”,—and thereupon to have such “determination” or “action . . . revieived by the Supreme Court”. And, in that connection, it would seem extremely unlikely that by such enactment the legislature ever contemplated anything other than that on the taking of such an appeal the Supreme Court, by and through the members thereof, would actually personally review the “determination” or “action” by the board of governors, or its examining committee, by a genuine and painstaking re-examination of the several questions which theretofore had been propounded to the applicant, as well as the respective answers which had been made by the applicant to such questions,—and thereupon, as an independent action by the court, reach a conclusion on the question whether in truth and in fact the applicant was entitled to be admitted to practice law in this state. In my opinion, the fact that by the terms of the statute the Supreme Court is authorized to prescribe the “procedure” to be followed in such a matter cannot affect the substantive right that is conferred upon the applicant to have his examination papers “reviewed” by this court. In other words, other than by prescribing “procedure” this court has no authority to legislate and thereby attach conditions under which the right of the applicant may be affected. Nor can the fact that literally hundreds of rejected applicants simultaneously may seek relief from a situation identical in all respects with that here presented alter or in anywise affect the substantive right accorded to each of such individual applicants. The time of the Supreme Court may be, and without doubt is, fully occupied with the ordinary business of the court; but that fact should not of itself present a good or a sufficient reason for it either to neglect or to refuse to perform the additional and burdensome duty thrust upon it by reason of such legislative enactment. Clearly, any “procedure” which this court may adopt in the premises must relate not to any diminution of the primary right of a petitioner, but, rather,—as is indicated within the terms of the act,—must be concerned solely with the manner in which he must act or proceed in bringing to the official attention of the court the essential fact that he is or has been an “unsuccessful applicant for admission to practice, after he has taken any examination” (sec. 6065, Bus. & Prof. Code), and that the board of bar governors has “refused certification to the Supreme Court for [applicant’s] admission to practice” (see. 6066, Bus. & Prof. Code). In his petition for “review”, neither by express language contained in the statute, nor by any meaning to be implied therefrom, is the rejected applicant required to ascribe any reason, whether real or fanciful, why the board refused to certify the fact that he be entitled to be admitted to the practice of law in this state. However, as is stated in the prevailing opinion herein, the instant proceeding is a hearing by this court which has occurred by reason of the fact that heretofore, at the instance of petitioner, an alternative writ of mandate was issued by which “the Committee of Bar Examiners and The State Bar” were required “to show cause why he [petitioner] should not be admitted to practice law in this state”. By its judgment, as is expressed in its majority opinion herein, this court has decided that “The burden is on the petitioner to show wherein the determination of the board was incorrect or unfair, ...” (Emphasis added.) It here may be noted that the bar of this state formerly—although possibly erroneously—has entertained that which now may be termed a ridiculous notion, to wit: That when, as a consequence of the issuance of an alternative writ of mandate, the respondent therein has been specially directed or ordered to show cause why the said respondent had not pursued a designated course, as expressly indicated in such order,—-in response thereto,—the final duty was cast upon such respondent (and not upon the petitioner for the writ) to actually show cause as directed. (Sec. 71, “Mandamus”, 16 Cal. Jur., p. 875.) Within the prevailing opinion herein the rule is quoted that, in a proceeding of this kind, unless the petitioner therein made a showing of “fraud, imposition, or coercion”, or that he had been denied “a fair opportunity to take the examinations”, this court would not “be willing to listen to his complaint”. (Citing In re Admission to Practice Law, 1 Cal. (2d) 61, 64 [33 Pac. (2d) 829]; Salot v. State Bar, 3 Cal. (2d) 615 [45 Pac. (2d) 203]; Spears v. State Bar, 211 Cal. 183, 191 [294 Pac. 697, 72 A. L. R. 923].) However, on examination of the cited authorities, particularly with respect to the facts of those respective cases, it becomes apparent that none of them is clearly applicable to the factual situation here involved. Moreover, the rule set forth in the prevailing opinion, as was announced in In re Admission to Practice Law, 1 Cal. (2d) 61, 64 [33 Pac. (2d) 829], was amplified in the later case of Salot v. State Bar, 3 Cal. (2d) 615, 617 [45 Pac. (2d) 203]. In that case, following the statement that the remedy (if any) of a rejected applicant for admission to practice law in this state in effect must be based upon “fraud, imposition, or coercion”, the important, if not controlling, and necessarily essential and conclusive language of the court is: “or that he has been treated unfairly or unjustly”. (Emphasis added.) It therefore would seem to follow that even though a petitioner be unable, or should fail, to show either “fraud, imposition, or coercion”, nevertheless (assuming that the burden is upon him), if he can show that he has been treated either “unfairly or unjustly”, he still may be entitled to the relief which he seeks. Considering the complete language of the announced rule (Salot v. State Bar, 3 Cal. (2d) 615, 617 [45 Pac. (2d) 203]), and both the circumstances prior to and ordinarily following the process of examining applicants for admission to practice law in this state, it is difficult, if indeed possible, to comprehend the reason (if any) for the use in the announced rule of the words “fraud” and “coercion”. Manifestly, the facts relating to any alleged fraud (except with respect to constructive or implied fraud) which was or might have been practiced upon an applicant would not be available to him; and how or in what manner any applicant could or might be “coerced” with reference to his examination must be and forever remain a dark and deep secret! But as to the significance of the word “imposition”, it is clear that the existence of circumstances might have been surmised which would or did justify its use. As presently employed, it probably imports something akin to the words “unfairly or unjustly”, which so closely follow the formed word. But, again considering the nature of the proceeding at bar, it is beyond ordinary comprehension how petitioner properly could complain of an assumed fact “that in any . . . manner he has been prevented from a fair opportunity to take the examinations”. (Emphasis added.) . Certain it is that such a situation did not obtain herein. In the main, petitioner’s complaint consists not in the fact that he was prevented from taking the examination but is to the effect that in the grading which was given his answers to the questions that were propounded to him he was either imposed upon, or he was treated “unfairly or unjustly”; and in order to illustrate such asserted fact to the ordinary mind, or to induce such a conclusion by this court, he has submitted with his petition a verbatim, copy of the several questions and his respective answers thereto. They are as follows, to wit: [The following material is quoted from the official questions submitted to and answers written by petitioner John E. Staley.] “QUESTIONS AND ANSWERS AS SUBMITTED TO JOHN E. STALEY IN THE BAR EXAMINATIONS OF OCTOBER, 1939. BOOK I. Question No. 1. Grade 45. Question No. 2. Grade 30. Question No. 1. Peters owned two cows, Nellie and Bossy, which he grazed upon his ranch, Blackacre. Nellie was stolen in August, 1935, by a neighbor, Daniels, who regularly used her in his dairy until September, 1937, at which time he sold her by bill of sale to one Smith, who was unaware of her previous theft by Daniels. Smith has since kept her together with a calf to which she gave birth in October, 1937. Bossy was wrongfully converted by Daniels in August, 1938. Peters secured a judgment for her value against Daniels in July, 1939, but has been unable to collect anything thereunder. In August, 1939, one Jones removed some grain worth $100 from Blackacre in the honest belief , that the particular area from which the grain was taken was part of an adjoining tract which he had leased. Jones has made liquor worth' $210 from the grain. All of the above facts occurred in the State of Magenta, which has a statute providing that an action for the recovery of personal property must be commenced within three years. In October, 1939, Peters asks you whether he is entitled to recover either by suit or peaceable self help: (1) Nellie and her calf from Smith (2) Bossy from Daniels (3) The liquor or the value thereof from Jones Answer No. 1. (1) It is elementary law that a thief can never give title to the stolen property so it is apparent that Daniels could not confer title in his transfer to Smith. As the possession of Smith commenced on Sept. 1937, the three year statute of limitations is not applicable. Smith being unable to convey any title; Daniels is regarded as having only the right of temporary possession until such time as the owner, Peters, chooses to take appropriate steps to recover “Nellie.” As Daniels did not acquire any title to “Nellie” from this it follows that he could not convey any and the calf of “Nellie” is the property of the owner of the animal but as title remained at all times in Peters, the natural increase of the cow “Nellie”, being her calf, is the property of Peters. The good faith of Smith in buying the cow from Daniels does not enter into the question as a thief cannot pass title. The right of self help exists on the part of Peters and he may peaceably take Nellie and her calf from Smith and he has the additional legal remedy of what is known in common law states as Replevin and in the code states as Claim and Delivery, in instances where a particular chattel or personal property is demanded by the owner. (2) As Peters has a judgment in the instance of “Bossy”, all of his remedies have been merged in the action in which he secured his judgment. One has an election of remedies and in commencing an action he may take his choice but when action is taken there is a merger of such remedies in the final judgment. Where remedies are inconsistent; the choice of one and its culmination in judgment bars the use of another. As the right of self help is inconsistent with the action taken by Peters in the case of “Bossy”; he cannot exercise “self help.” (3) As the mistake of Jones was not in any way induced by Peters no element of estoppel exists as to the parties. Something more than an “honest belief” on the part of Jones must exist. There must have been some act or omission on the part of Peters. The leading case on this subject is the California case of Biddle Boggs vs. Mining Co., reported in 14 Cal. 297. This case lays down the law regarding boundaries and estoppel. There must have been a misrepresentation on the part of Peters or a statement as to boundaries made with knowledge of its falsity or in reckless disregard of the truth, coupled with an intention for the other party to act but none of these elements exist. Peters would have been entitled to the grain and the question arises as to whether the change of the grain into liquor by the process of distillation defeats Peters in his right to recover. Jones in taking the grain was a mere trespasser and his honest belief does not alter the legal situation for the reasons stated. The change in character from grain to liquor does not defeat the right of Peters to recover his property and if the law were otherwise the rightful claim of an owner to property could be defeated by a change of form. This being so Peters has the right of peaceable self help as Jones was a mere trespasser in the acquisition of the grain. The change of form from grain to liquor does not defeat this right and while Peters by taking the liquor acquires the right to seize his property in the altered form as the law regards the liquor as the property of Peters. Peters has the additional right of legal action. He may sue Jones for conversion of property or bring an action for a money judgment for the value of the grain. He could not recover for the value of the liquor as the law of damages limits him [to] the value of the grain and any injury to his freehold. As the value of the liquor exceeds that of the grain by $110, it is obvious that the right of self help is the more advantageous of the remedies. While it might seem harsh that Jones should lose the additional value enhanced in the process of distillation yet the law regards him as a wrongdoer in the first instance even though he acted in good faith. Question No. 2. Knapp owned in the State of Magenta two tracts of Land, Blackacre and Whiteacre. Blackacre he was induced to sell and convey to Brown through the fraud of the latter. Brown in turn sold and conveyed the land to Black, who had no notice of Brown’s fraud and paid value for the land. Later Knapp discovered the fraud which had been committed against him and went into possession of Blackacre, claiming that the sale to Brown was void. He stayed in possession for one year, planting and harvesting a crop of wheat. While the grain was still lying in sacks on the ground, Black, who, not having occupied the land himself after his purchase, had just learned of Knapp’s action, peaceably retook possession of Blackaere and claimed the grain as his own. Meanwhile Knapp had leased Whiteacre to White for five years beginning January 1, 1937, at a yearly rental of $1,000, payable on the first of each year. In December, 1937, White abandoned the premises. In February, 1938, he mailed the keys to the farmhouse and other buildings on the premises to Knapp, saying he repudiated the lease. Knapp kept the keys but at no time after White’s abandonment attempted to communicate in any way with him, and on February 2, 1939, he relet the premises to another for the remainder of the original term at a yearly rental of $500 the most he could reasonably secure. Knapp now asks you: (1) Whether he is entitled to the grain on Blackaere; (2) What his rights are against White, only the first year’s rent ever having been paid under the lease of Whiteacre. Advise Knapp. Answer No. 2. (1) Black was an innocent purchaser for value of Black-acre and he received a good title from Brown as Black acted without any notice, actual or constructive of the fraud of Brown. Knapp in going onto Blackaere and planting the crop was a mere trespasser and as Black did not know of Knapp’s act until after the grain had ripened, there is no element of estoppel present. (Biddle Boggs vs. Merced Mining Co., 14 Cal. 279.) Black having not only the title but the right to possession at all times was entitled to the grain. Knapp is not entitled to the grain. (2) The legal question involved is whether Knapp in renting Whiteacre after the default of White, has waived his right to recover for the entire term of White’s lease. White in mailing back the keys and repudiating the lease clearly demonstrated his intention of non-compliance with the terms of the lease. Under these circumstances the owner, Knapp, had the right to rent the property to another and treat the lease to White as breached by White. Knapp would not be required to keep the property vacant and subject to the occupancy by White as White has clearly shown he would not reoccupy. Knapp had the right to diminish damages by renting his property to another and Knapp may sue White for the period of January 1938, to February 2, 1939; at the rate of $1000 a year, and from February 2nd, 1939, to date of filing suit at the rate of $500 being the difference in the lease price and the actual second rental and Knapp may sue for such period of rent on the basis of yearly loss of $500; or Knapp may elect to wait until just before the period of 4 years from December 1937, the date of default, and sue White for the accumulated damages based upon the yearly rental of $1000, while the property was vacant and the loss of $500, at a yearly rate under the second letting. As we have a four year period of limitations for bringing actions under an instrument in writing; Knapp if he elects to wait instead of suing White, each year for the loss; may later sue at the end of the fifth year for the difference in rent; as the breach would have been for the last year of the lease. BOOK II. Question No. 3. Grade 35. Question No. 4. Grade 30. Question No. 3. Adams, who had for ten years owned Greenacre, having an opportunity to purchase Blaekacre at an exceptionally low price, decided to buy the tract and to organize a corporation to which he could sell the two pieces of land. Green-acre had originally cost Adams only $100,000 but its present market value is $200,000. Adams paid $50,000 for Blaekacre, although its present market value is $100,000. In pursuance of his plan, Adams organized the Enterprize Corporation, installed his wife and two sons as the first directors, and caused stock to be issued to the public. The corporation then purchased Greenacre and Blaekacre from Adams for $200,000 and $100,000, respectively. Shortly, thereafter, a new board of directors was elected and now desires to bring suit against Adams. (1) What damages, if any, can the corporation recover from Adams as a result of its purchase of Blaekacre ? Greenacre ? (2) Is the corporation liable to Adams for the reasonable amount of the expenses he incurred in organizing the corporation ? (3) Discuss the liability of the corporation and of Adams on a contract made by Adams prior to incorporation in the name of “Enterprize Corporation” with one Thomas, who agreed to furnish certain goods to the corporation for six months after incorporation at a stipulated price. The corporation received the goods knowing of the contract made by Adams, but now refuses to pay Thomas on the basis that neither its board of directors nor officers had taken any action to affirm the contract. Answer No. 3. (1) It is assumed that the time of organization of the Enterprize Corporation is contemporaneous with the “present market value” of the parcels of land involved. Under this assumption there would have been no fraud or unfairness on the part of Adams. A corporate officer has a fiduciary relation regarding the corporation. He may not make secret profits and in all his dealings with the corporate property he is required to show good faith. While there had been an increase in the increment of the parcels of land involved it seems that Adams could have marketed the land at the time he sold it to the corporation for the same price. This being true, there was no advantage gained by Adams. The circumstance that his relatives were also officers does not affect the situation as there is not any breach of fiduciary relation on the part of Adams. The corporation cannot recover on either parcel as they did not sustain any loss and there was no irregularity as a corporate officer in the conduct of Adams. (2) A corporation is liable for the reasonable amount of money in the form of expense incurred and paid by one of its officers but where the expense is incurred only the money may never be paid. Adams has only a contingent liability for them but until his liability becomes absolute by payment by him the corporation would not be liable. (3) While there was no corporate entity at the time that Adams contracted with Thomas, yet when the Enterprize Corporation received the goods, knowing that Adams had contracted with Thomas anticipating the formation of the corporation; the Bnterprize Corporation ratified the act of Adams. Under the law of Agency the acts of an agent, who was not at the time authorized to act, may be ratified and this may be done by assuming the benefit of the acts of the agent. The corporation cannot both hold the goods and refuse to pay. Formal ratification is not required as the corporation has retained the goods. The retention of the goods purchased by Adams is an act of ratification and the corporation must pay the stipulated price. Question No. 4. On a trial for the murder of P, D’s defense is that P was the aggressor and that D reasonably believed it necessary to shoot P in self-defense. D offers to prove that P and D had been rivals for the same girl, that P had approached D with a gun in his hand, and that P, as D learned after the killing, had told others shortly before that he would kill D on sight. D offers testimony of W, a service station attendant, that W saw P shortly before the shooting heading toward D’s house, that P “appeared to be angry” and that he was then carrying a weapon (previously introduced in evidence) which, though in fact incapable of shooting, “would reasonably be mistaken for a real gun.” On cross-examination of W the prosecution asks him if he is related to D and the witness answers “No.” The prosecution then asks W his age. He replies “25.” The prosecution now offers the testimony of C, cousin of W’s, that W is a relative of D’s and that W had a day before, at W’s house, told C of the relationship. The prosecution also offers a certified copy of W’s birth certificate showing him to be 30 years old. (1) For what purposes, if any, may the statements made by P be introduced ? (2) Is W’s testimony admissible? (3) Is C’s testimony admissible? (4) Is the certified copy of the birth certificate admissible? Answer No. 4. (1) The statements of “P” are not admissible for any purpose as it appears that such statements were not communicated to “D” until after the killing; and as the pretended weapon would not in fact shoot; the declarations of “P” could not be introduced even for the purpose of proving a plan of action. While statements of an assailant to homitide cases are admissible for the purpose of proving a plan of action or for the purpose of showing that the defendant had known of the statements and on that basis had reasonable cause to fear for his life; the circumstances of this case do not warrant the introduction of “P’s” statements. In self defense it is required to show that the threats were communicated; that they were believed by the defendant and that the defendant also believed that the assailant also had the power to execute the threats at the time of the act. (2) Under section 2052 of our Code of Civil Procedure, a witness may be impeached by asking him regarding inconsistent statements made at variance with his testimony. The procedure is to ask the witness if he made such statements; if he wishes to explain them, and then to introduce the impeaching testimony. The first step is “laying the foundation” and the second is the impeachment. The inconsistent statements may have been made out of court and if they are material or relevant and not incompetent, they may be introduced. W may be impeached by showing that he stated falsely regarding his age as the court or jury may be entitled to this information in forming an opinion as to the maturity of the witness. His relationship, according to his statements may also be shown as it would prove bias and favor. The principle of “falsus in uno falsus in omnibus” enters. (3) The statement of “W” may be proven by “C” as the latter is an impeaching witness. The law regards one who makes inconsistent statements as subject to impeachment. (4) Yes. The court or jury estimate the witness by his age, among other attributes; and the copy of the birth certificate being certified it tends to show that “W” testified falsely. It is conventional procedure, in examining a witness to ask him about his age, among other qualifications. The cross examining attorney may impeach the witness by introducing the certificate. BOOK III. Question No. 5. Grade 20. Question No. 6. Grade 15. Question No. 5. A owned a bull known by him to be extraordinarily vicious. One day the bull escaped from A’s pasture without negligence on the part of A, and entered B’s land. B saw the bull rush at him, but carelessly waited too long before running for cover and was gored. .C, the wife of B, was standing with B when the bull appeared; she ran at once, but in her excitement tripped and fell, thereby suffering a minor injury. She then managed to proceed to safety. However, she sustained fright and mental shock resulting from realization of her own danger and her husband’s injuries, and she ultimately suffered a miscarriage therefrom. For what, if anything, may B and C, or either of them, recover ? Discuss fully. Answer No. 5. The degree of care which the law requires “A” to manifest in the custody of a domesticated animal seems to have been satisfied in this case. While an owner of a domestic animal might, under some circumstances, be held liable when the owner had notice or knowledge of the vicious propensities of the animal; in this case it appears that the escape of the bull from the pasture was “without negligence on the part” of “A”. The law does not impose upon the owner of a domesticated animal the same extraordinary degree of care that it imposes upon one who harbors a wild animal. The owner of domesticated animal is not absolutely liable for any damage caused by the animal even tho’ he knew its vicious propensities. Applying the rule above stated in reference to the facts of the case it seems that “B” in carelessly waiting too long was guilty of contributory negligence and that bars his recovery. The law consistently refuses to give damages for mere mental shock or nervous fright. The cases hold that there must be some actual, physical injury, before one may recover. The statement of facts concerning “C” states a minor injury but she managed to proceed to safety. The miscarriage suffered by “C” was not directly resultant from any actual injury inflicted by “A’s” bull and she cannot recover for that. The recovery of “C” would be limited to the minor injury mentioned in her escape; if there had been negligence on the part of “A” but as there was none there can be no recovery. Question No. 6. A agreed in writing with B to sell B a specified pleasure car which he promised to deliver to B “as soon as it could possibly be secured from the factory.” In consideration thereof, B promised to pay $1500 “if A delivered the car with reasonable promptness after the same could be obtained from the factory.” A delivered the car to B’s premises, during the latter’s absence, two days later than it would have been possible for him to do so. B refuses to keep or pay for the car. B has also written 0, his nephew, that in the event C took a trip to Alaska, B would give him a new Packard Six coupe. C did take the trip, but B refuses to give him the ear. A and 0 now threaten suits against B, who asks you whether: (1) A has a cause of action for breach of contract; (2) C has a right to damages for non-delivery of the car. Advise B. Answer No. 6. (1) The provision in the agreement regarding delivery “as soon as it could possibly be secured from the factory” is modified by the other clauses to the effect that delivery would be made “with reasonable promptness.” A period of two days, in itself, is not an unreasonable lapse of time for the delivery to the residence of “B”. While the car could have been possibly delivered sooner; it was delivered with reasonable promptness. In the absence of any stipulation regarding the place of delivery it was proper for “A” to deliver the car to “B’s” premises. “A” has a cause of action against “B” for breach of contract. (2) “C” has no cause of action against either. There was no privity of contract between “A” and “C”. “B” is not liable to “C” for the reason that the law does not regard a promise of the character of the one that “B” gave to “0” as actionable. The question is not justiciable. The advice to “B” is to accept the car or to suffer suit at the hands of “A” for the amount of the profit that “A” would have made from the sale. BOOK IV. Question No. 7. Grade 35. Question No. 8. Grade 10. Question No. 7. Ben Actor has retired and lives comfortably upon the income and proceeds from large investments made during earlier years when he was world renowned as a playwright and actor. His only activity is the occasional uncompensated coaching of members of the “Actor Repertory Players, Inc.” a professional dramatic company which regularly sends a troupe of players on tour in the United States. The playbills usually refer to the fact that Actor has personally coached most of the players. Alex Lear, an unprincipled rival of Actor’s in the old days, and presently owner of a competing dramatic company, is writing Ms memoirs to be published soon in a national magazine of wide circulation. In one of his chapters he describes a certain illicit affair Actor is said to have carried on clandestinely with his leading lady, and states that Actor today is secretly supporting an illigitimate child which resulted from said affair. This story is untrue, as Lear knows. The articles constituting these memoirs also are to contain the following: “Now he is patriarchal godfather to the anaemic ‘Actor Repertory Players, Inc.’—which contributes its chapter to the history of the illegitimate stage by subsisting upon the fruits of stolen copyrights and by bribing critics for the few favorable reviews its performers so consistently never deserve.” These charges are false, as Lear knows. Lear also has hired a number of thugs who are to kidnap Ima Beauty, the leading lady of “Actor Repertory Players, Inc.” upon the nights of important engagements. As attorney for Actor, “Actor Repertory Players, Inc.” and Beauty, give your opinion, with reasons, as to what injunctive relief, if any, will be extended your clients against the threatened wrongs. Answer No. 7. Injunctive relief lies, in other proper cases, where there is no plain, speedy nor adequate remedy at law. While an injunction will not issue merely to restrain the commission of a crime; yet where the threatened act is also violative of a property right and damages at law would not suffice, injunctive relief may be given. Ben Actor has no property right to be protected as his services are contributed and voluntary and while his professional reputation might and probably would be damaged, it appears that he is retired from the acting profession. Ben Actor cannot make out a case for injunctive relief. The “Actor Repertory Players” have a property right which can and should be protected by injunctive relief. While there is also a legal remedy, the threatened publication should be restrained for the reasons that the libel laws would not secure to the “Actor Repertory Players, Inc.” the full measure of relief which could be obtained by injunction. The actors themselves are distinct entities from their corporation. While the corporate entity is damaged yet the actors who function under it are likewise injured; even tho’ they are not named as individuals. If the corporation, as an artificial person has a property right, and it has; that right may only be fully protected by injunctive relief. A multiplicity of suits is apparent. Ima Beauty is also entitled to injunctive relief for the reason that the sufficiency of her legal remedy does not meet the test laid down above. A multiplicity of suits would be involved in litigation in behalf of Ima Beauty. Even if such suits were instituted and the Defendants were able to, and did respond in damages, injuries suffered by her might terminate her professional career. The right of “Ima Beauty” to star in the various performances is a property right which should be protected by injunction. Equity will protect such a right even tho’ a crime is also involved. Question No. 8. Daniels walked into a drug store operated by Peters, went to the cigar counter, and selected three cigars, handing Peters a twenty-dollar bill. Peters handed Daniels his change, which included a ten-dollar bill. Daniels then reached in his pocket and said: “Pardon me. I don’t have to take all your change. I just discovered I have a one-dollar bill.” “Fine,” replied Peters. Daniels then purported to hand Peters the change he had been given, but “palmed’ the ten-dollar bill and did not return it. Peters thanked Daniels and returned the twenty-dollar bill. Immediately after Daniels left the store Peters discovered his loss. Daniels did the same thing in another drug store a few hours later, but was apprehended as he left the store. With reference to his activities in Peters’ store, of what crime or crimes is Daniels guilty ? Answer No. 8. Daniels is guilty of Theft as his acts, under common law would amount to embezzlement and under our Penal Code the distinction between larceny and that crime are abolished and both are made Theft. The value being ten-dollars, the crime is petty theft. Daniels is also guilty of obtaining money by false pretenses .as he is using a trick and device within the meaning of our Penal Code. The intent to work a scheme by trick and device is shown by the operations of Daniels in the other store following his commission of the act in the store of Peters. BOOK V. Question No. 9. Grade. 55. Question No. 9. Mitchell was a member of the Interstate Commerce Commission. The act under which he had been appointed by the President with the advice and consent of the Senate provided that a Commissioner could be removed by the President for “inefficiency, neglect of duty, or malfeasance in office.” The President, however, removed Mitchell because of differences in political philosophy, although disclaiming the imputation of any wrongdoing by Mitchell. The City of Fair view, State of Magenta, passed an ordinance making it a misdemeanor to maintain a brick kiln, whether established prior or subsequent to the effective date of the ordinance, within a described residential district of the city. Mitchell maintains and had maintained for several years prior to the ordinance, a brick kiln within the prohibited area. Enforcement of the ordinance would decrease the value of his property 50 per cent. The State of Magenta also enacted a statute setting up a board of censors, and prohibiting under penalty of fine and imprisonment the exhibition of motion pictures other than those found by the board to be “moral, educational, or amusing and harmless in character.” Mitchell owns a motion picture house in Magenta. Discuss the constitutionality, as applied to Mitchell, of: (1) His removal by the President from the Interstate Commerce Commission. (2) The ordinance prohibiting the brick kiln; (3) The statute providing for censorship of motion pictures shows. Answer No. 9. (1) This seems to be “on all fours” with the Humphrey's Case. Humphrey was a Commissioner, appointed under a previous administration and President Roosevelt sought to remove him from office under substantially the same theory mentioned in the question. The Supreme Court of the United States in reviewing the Humphrey case held that as the advice and consent of the Senate was necessary to the appointment, that a difference in political philosophy, or social or economic views between the Commissioner and the President was not a ground for the removal of Mr. Humphrey. The only authority for removal is found in the act and in the course followed the President acted without authority of law. On the basis of the Humphrey case; the removal was contrary to organic law because the mode of removal, provided for in the Statute was not followed. When an office is created by an act under the authority of the Constitution the method of removal under the Act must be followed. It follows that Mitchell is entitled to the office. (2) It has been generally held that if an occupation or calling is followed, that is not in itself a nuisance per se, that ordinances of the nature of the one under consideration are violative of constitutional rights. While the Police Power extends to the making of laws for the General Welfare, Sanitation, Health, Safety, Morals and like purposes; it has been held that this power cannot be used to prohibit the operation of a business that does not, in itself, conflict with any of these purposes and that where one had established a business or calling prior to the enactment of such an ordinance, that the ordinance conflicts with the right of the proprietor to conduct such business as it would be a taking of property without due process of law. (3) The valid exercise of the Police Power includes legislation enacted for the protection of the morals of the people. It would be difficult to conceive a more potent and widespread means of propagation of public thought than is to be found in motion pictures. Motion Picture theatres are to be found in every city and almost every town in the United States. If films could be made and exhibited without censorship by a State; the State would lose effective control over the most powerful means of influencing public morals than any other agency, with the exception of the press; and probably many of our people are influenced by motion pictures who are not influenced at all by newspapers. This is because the influence of the paper is usually found in its editorial section while the influence of the movie comes, unconsciously, to the audience in the form of entertainment. While the language of the statute is very broad and general, it seems to contain sufficient terms to be a valid exercise of the Police Power of the State. The word “amusing” is liberally defined to mean “entertaining.” Each state has the right to enact suitable legislation for the protection of the morals of their people and in this case, it is properly exercised, altho’ the language of the Statute could be greatly improved. BOOK VI. Question No. 10. Grade 40. Question No. 11. Grade 75. Question No. 10. Adams, Blake, and Clay constituted the board of directors of the Drumm Corporation. At a meeting of the shareholders a committee was elected to advise the directors on matters of corporate management. The directors having indicated that they were considering executing a certain contract within the scope of the corporate business, the committee counselled against the advisability and the shareholders at a special meeting unanimously passed a resolution in opposition to making the contract. Neverthless, the directors entered into the contract, which it is conceded was reasonably appropriate for corporate purposes. Adams was a man of nationwide reputation who had been induced to serve gratuitously as a director in order to lend prestige to the corporation. Inasmuch as he resided at a great distance from the corporation and was extremely busy, Adams was told by the president of the corporation, at the time he became a director, that he would not be expected to attend meetings or engage actively in the management of the corporation. Had Adams taken an ordinarily active part in the corporate affairs he would have discovered that the corporation's treasurer was engaged in the practice of embezzling from the company’s funds. The shareholders demanded of the directors that they take action against the treasurer, but the treasurer, being a relative of Clay’s the directors refused. Blake, knowing that the directors had just completed a transaction which would be highly profitable to the corporation, bought the stock of Smith, a shareholder. Blake was not asked about nor did he reveal anything concerning the corporation’s affairs. The stock was actually worth twice the amount which Blake paid for it and for which it was selling on the open market. (1) If loss resulted from the contract which the directors made against the wishes of the shareholders and their advisory committee, would the directors be liable? (2) Do the shareholders have any way to redress in a civil action the wrong committed by the treasurer ? Discuss. (3) Would Adams be liable for the loss caused the corporation by the treasurer’s embezzlement? (4) Does Smith have a right to avoid the purchase of stock by Blake ? Answer No. 10. In a corporate structure the directors have specific duties which they, alone, are required to observe and under which they function. Among these duties are the exercise, by the directors of discretionary powers. While stockholders may advise the directors, and as they did in this case elect a committee; still they cannot displace the discretion of the directors nor the legal authority under which the directors operate. The directors in their functioning may, and as a matter of pragmatism, often do commit error. Errors of judgment alone, do not render the directors liable. If the directors were solely guided by shareholder’s committees they would be liable if they attempted to delegate their discretion as the law places this responsibility on the directors alone. The proper course for the stockholders who distrust the ability of the directors is to replace the directors. As the contract was “reasonably appropriate for corporate purposes” the directors properly exercised their discretion, which is nondelegable; and they cannot be held liable for any loss which might have resulted from the execution of the contract. (2) The duty of Adams, as a director, required that he give his time and attention to the affairs of the corporation. He could not do this by acting in a perfunctory manner. Had he functioned in the way required by law he must have discovered the defalcations of the treasurer. The Constitution of the State of California for many years embraced a clause requiring that directors of corporations be liable for the embezzling by an employee or officer and similar breaches of trust. This provision was only affirmatory of the common law in instances where the directors knew, or from the circumstances should have known of the defalcations. The refusal or failure of the directors to take action in the matter of the treasurer at the demand of the shareholders certainly made the directors, including Adams, liable for the amount lost to the corporation thru the embezzling. The shareholders may bring an action against the directors. (3) Yes, explained in “2” above. (4) The relation of a director concerning the affairs of the corporation and the affairs of a stockholder and the corporation are fiduciary. The law imposes upon the director the duty of acting with the utmost good faith in all such matters. The director may not remain quiescent concerning a secret profit he may have made when the source of knowledge comes to him thru his functioning as a director of the corporation. The director may not tacitly engage in profitable operations for himself when such operations conflict with any duty he owes to the corporation as an artificial entity, or to the stockholders as persons in whose behalf the director functions. Had the corporation purchased the stock of Smith at the price which Blake paid, it is obvious that the corporation would have enjoyed the same profit, on resale, or would have reduced the outstanding stock. In either event it would have been highly advantageous to the corporation. Blake in using knowledge which came to him as a director engaged in an operation which conflicted with his duties in his fiduciary relations. Question No. 11. In a personal injury action brought by Phillips against Dodge, Adams, an attorney for the plaintiff, is permitted, over defense objection, to take the stand and testify he saw the defendant shortly before the collision in a drunken condition. The defense, on cross-examination of Adams, is allowed to ask, over the objection of associate counsel for the plaintiff, whether Adams had not taken the ease on a contingent fee basis. The court further rules, over plaintiff’s objection, that the defense may ask Adams if Phillips had not been drunk when Adams, an hour after the collision, was called to the jail in which Phillips was incarcerated, and also whether Phillips at such consultation had not admitted that he had been intoxicated. The court also overrules a defense objection to Adams calling one of the jurors, who thereupon testifies to overhearing Dodge say he had been intoxicated at the time of the injury to Phillips. After judgment for the defendant the plaintiff moves for a new trial on the ground, among others, that one of the jurors had accepted a bribe for the defendant. At the hearing on the motion the court, over the defendant’s objection, admits an affidavit from one of the jurors that the juror in question had received a bribe. Discuss the correctness of the court’s ruling in each instance. Answer No. 11. An attorney may be witness for his client. This is frowned upon as a matter of ethics and it should not be done but it may be done. When an attorney does become a witness his bias or partiality may be shown, as in the instance of any other witness. How better may the bias of a witness be shown than by proving that he has a financial interest in the outcome of the litigation contingent upon its terminating favorably for the party for whom he testified? Adams should be compelled to testify as to whether he took the case on a contingency. An attorney, under our code, may not testify to confidential communications received in the scope of his professional duties, without the consent of his client. The condition of intoxication is not a confidential communication. Anyone may testify as to that matter. An attorney is not exempted from testifying as to all matters coming under his observation while acting within professional scope. (Sharon v. Sharon, 97 Cal.) The appearance of the client at the time of the interview, his gait and other matters indicating intoxication may be inquired into and the opinion of the attorney as to intoxication elicited. However, we cannot compel Adams to testify as to the admission of the client. The law presumes that such a discussion was a confidential communication and comes under the rule of privilege. It appears, from the text of the question that only the attorney, Adams, and the client were present on this occasion, so we cannot inquire as to the admission. A juror, or the judge, may be called as witnesses in any cause in which they may give admissible evidence. The evidence was a statement against interest on the part of a defendant and comes under section 1870, subd. 2- being “an act, declaration or omission against interest. ’ ’ Under the historic development of our law the jurors are competent as witnesses. In fact in the early history of litigation in England they were the “compurgators” who testified freely concerning the issues. One of the grounds for a new trial, under our Code of Civil Procedure, is the bribery of a juror and the section specifically provides that the affidavit of a juror may be used for proving the misconduct of the jury in an instance of this kind. BOOK VII. Question No. 12. Grade 25. Question No. 13. Grade 50. Question No. 12. Abbott, a famous painter of biblical characters, advertised publicly that he intended painting a life size picture of Elijah and solicited bids for its purchase. Byers’ offer of $750 being the highest of several received, Abbott agreed orally with Byers that he would paint the picture and sell it to Byers for that price. He completed the painting and advised Byers it was ready; whereupon Byers, in a personal letter to his wife, mentioned, among other things, that “I have bought a picture from Abbott for $750”. The letter was read by Mrs. Byers and some mutual friends of hers and Abbott’s and destroyed. Later, Byers wrote Abbott as follows: “I will pay $200 for a life-size painting of Moses,” and the next day he wrote: “I will pay $200 for a life-size painting of Joshua.” Abbott, without notifying Byers, commenced work on both pictures. Hearing from a friend that Abbott was working on the painting of Moses, Byers, without the knowledge of Abbott, contracted to sell it to a customer for $300. When both pictures were one-half completed, Abbott notified Byers of this fact and that he had decided not to finish the painting of Moses, but would finish that of Joshua forthwith. Byers immediately advised Abbott that he had had no idea Abbott had commenced on the painting of Joshua, that he no longer wanted it, that Abbott should consider this offer revoked, but that he would hold Abbott for breach of contract unless the painting of Moses was finished. Abbott completed the picture of Joshua but not that of Moses. Byers now refuses to pay for the painting of Elijah and refused Abbott’s tender of that of Joshua. 1. Can Abbott recover for Byers’ refusal to accept and pay for the painting of Elijah? 2. Does Abbott have a cause of action for Byers’ refusal to accept tender of the painting of Joshua? 3. Does Byers have a cause of action for Abbott’s refusal to complete and deliver the painting of Moses? Answer No. 12. (1) Our Statute of Frauds does not enter into the matter (sec. 1973 C. C. P.) for the reason that a painting in the process of completion, or to be painted, comes under the excepted classification. The ad of Abbott was an offer which was accepted by Byers, as the high bidder. The latter was not required to be communicated to Abbott for the reason that this matter is outside the Statute of Frauds, being a class which was to have been created within the meaning of the Statute. As each picture was distinctive and unique. (2) Byers makes two distinctive offers concerning different subject matters at different times. While an offer should be accepted the parties may by their course of dealing establish what our Supreme Court of California denominates “contemporaneous construction of a contract by the parties.” The course of dealing shows that Byers made an offer and then assuming the acceptance by Abbott Byers then offered the subject matter for sale. Abbott, relying upon this offer of Byers, commenced the work of artistic production. Abbott has a cause of action for the failure of Byers to accept the picture of Joshua. The orders for the pictures were separate transactions concerning different subjects and the contracts were individual matters. The offers having been communicated at different times we have two distinct contracts. (3) Abbott by commencing work on the picture of Moses established the contemporaneous construction and his act was an acceptance of the offer of Byers. Byers offering the picture for sale to a customer confirmed the contemporaneous construction. The artist apparently refused to finish the picture because he had heard of the profit which Byers expected to enjoy from the transaction but as he had commenced the picture, a contract exists. Byers has a cause of action against Abbott. Question No. 13. Intending to make a will, Wilson typed a one-page document entitled “Last Will”. It contained the usual formal clauses and read in part: “Such articles as I shall designate in an inventory that will be found pinned to this will, I leave to Jones.” Following various dispositive clauses, one of which named Smith as a legatee, there was a space with three lines for signatures, and, following this, a residuary clause. Wilson called in Smith and his stenographer. He signed on the first line in their joint presence, stated it was his will, and requested them to sign on the lines as witnesses. Smith signed and left the room, and twenty minutes later the stenographer signed. Wilson remained present throughout. Two weeks later Wilson listed on a paper entitled “For Jones” several articles, none of which was otherwise specifically disposed of in the original document, pinned the list to the letter, and placed both in the envelope. A year later Wilson executed a document entitled “Codicil” which clearly referred to the original instrument as his will and appointed a different executor to act thereunder. This document, witnessed by Allen and Brown, was duly executed by Wilson in compliance with all local statutory requirements. Wilson placed it in the envelope and a month later died. (1) Was the original document, prior to execution of the codicil, validly executed as a will? (2) Assuming that the original instrument and the codicil were validly executed as a will, what are the rights of (a) Jones, (b) Smith? Answer No. 13. (1) Our Code provision requires that the testator sign the will in the presence of the witness and the witnesses must sign in the presence of each other. As Smith left the room before the signature of the stenographer as a witness the will was not properly witnessed. The residuary clause followed the signature and must have been below them and as to this clause it was not “subscribed”, -which our Code requires in a will of this class. As “subscribed” means to be written below the residuary clause does not satisfy the requirements of the Code. Smith was a legatee and also a witness. (2) Assuming the validity of the will: (a) There was no testamentary disposition as to the articles to be left to Jones at the time of the making of the will because the testator did not at that time have in mind the thing