tatus assumpsit in form. Here the action is to enforce the payment of a penalty for noncompliance with the terms of the ordinance. But, as before stated, we nevertheless think the general demurrer was properly sustained, even if it could be held that the provision as to the keeping, possessing, and storing of alcoholic and intoxicating liquors applies to regularly registered druggists and pharmacists. The complaint charges the defendant with having, keeping, possessing, and storing the contraband liquors, "without any legal license or permit so to do." Section 6 of said ordinance provides, as observed, that certain pharmacists or druggists may sell the interdicted liquors upon and under certain specified conditions, limitations, and restrictions, among which is, as a prerequisite to so engaging in such sale, the procuring of a permit from the board of trustees of plaintiff. We think that, in order to have stated a cause of action against the defendant, the complaint should contain a direct averment that he sold or was engaged in the business of selling such liquors contrary to the provisions of the ordinance or without having first obtained the permit so to do from the governing body of plaintiff. It does not necessarily follow from the averment that he has and possesses and stores such liquors that he is selling or intends to sell them. There is no permit required for the mere keeping and storing the liquors. In fact, such a permit would be inconsistent, except in the case of those expressly excepted from the operation of the ordinance, with the provisions and the general purpose thereof; but necessarily the defendant, as a pharmacist within the description of the ordinance, would be entitled to keep, possess, and store the prohibited liquors. The very fact that the ordinance declares that he may sell such liquors invests him, ex necessitate, with the indispensable right to have and possess the same. His offense, if any at all, would be in dispensing or selling the same contrary to the conditions imposed by the ordinance or without the required permit, or for both reasons, assuming for the present that a permit to sell such liquors by a pharmacist or druggist may be required. This is neither an ultra-technical nor a metaphysical analysis of the complaint, for the very first and cardinal rules of pleading demand that the averments of the gist or gravamen of a complaint shall be clear and direct. Particularly should this be true where, as here, the recovery sought is upon a liability in the nature of a penalty or forfeiture, the right to sue for which is purely of statutory origin. The complaint here, in undertaking to state a case against the defendant under the ordinance under consideration, is obviously lacking in those elements of good pleading. In our opinion, as observed, it states nothing that the defendant has not the right to do

even under the terms of the ordinance, and therefore cannot resist the force of the general demurrer; but, as already intimated, we do not hesitate to take a step farther.

We are familiar with no principle of law from which authority may be deduced for prohibiting a pharmacist or druggist, regularly engaged in the business of compounding prescriptions and selling drugs, from having and possessing and selling intoxicating liquors for the legitimate purposes of his business, and from storing or keeping in stock such quantities of the same as the exigencies of his trade may require. It is, we think, a matter of common knowledge, as much so as are the uses to which quinine is medicinally put, that many, if not all, of the liquors mentioned in this ordinance are often deemed to be necessary to be used for medicinal purposes. Of course, as in the case of certain poisons ordinarily sold at drug stores, the sale of liquors for medicinal purposes by pharmacists or druggists may be, by the public authorities, confined to such purposes and otherwise subjected to proper and reasonable regulation, or to the imposition of such conditions and restrictions as will safeguard, protect, and preserve the rights of the public. It is well known that the fundamental property of nearly all bitters, a legitimate subject of traffic by all druggists, is alcohol, and that the excessive use of them by an individual will produce intoxication, and there is no doubt that many prescriptions contain as an essential element, according to the judgment of physicians, some character of intoxicating liquors, and no doubt there are cases of physical illness which require liquor of some kind in its unmixed and unadulterated form. The medical doctor's prescription for spiritus frumenti (whisky) or aqua vitæ (brandy), when given for a legitimate medicinal purpose, is not uncommon, and certainly cannot be unlawful per se, and surely it could make no difference whether the whisky or the brandy were dispensed by the pharmacist and used by the purchaser, in Latin or in plain English, if the purpose of such sale and use were purely medicinal. The sale of opiates and other more drastic poisons by regularly licensed druggists is hedged about by restrictions which, as a protection to the public, the law has an unchallengable right to impose; but it has never been supposed for an instant that the sale of such "drugs" could be entirely prevented, any more than that the sale of the thousands of different kinds of specifics and patent medicines and nostrums could be stopped, where it could not be established that, even when used for the particular medicinal purpose which it is claimed and advertised they will subserve, they would produce positive harm to such as might so use them.

The Legislature may and does (section 307, Pen. Code) prohibit the sale of opium for certain designated purposes, and under certain

indicated circumstances; but it would not be contended that that narcotic may not be kept and sold by a druggist as one of the essential elements of his business, for it is, as we know, as a matter of common knowledge, a substance necessary to be used in the compounding by a pharmacist of medicines and prescriptions. So, as to liquors. It is known, as before observed, that they are frequently found necessary to be used in the compounding of physician's prescriptions, and often found absolutely necessary in cases where the particular disease to be treated peculiarly affects the heart action. Liquors therefore,

when kept for medicinal purposes, come as clearly within the generic term "drugs" as any other animal, vegetable, or mineral substance comprising the elements of which medicines and prescriptions are ordinarily compounded.

Our conclusion is, as must be obvious from the foregoing views, that a druggist or pharmacist, engaged legitimately in that business, has the right, without express authority of law, to have, keep, possess, and store certain of the liquors mentioned in the ordinance under review, as a part of the necessary "drugs" or stock in trade of his business, to be sold by him, subject to the conditions, limitations, and restrictions prescribed by said ordinance, for medicinal purposes; that the defendant can therefore be subjected to the penalty or penalties therein prescribed only where it may be shown that he has dispensed or is dispensing such liquors in violation of said conditions, restrictions and limitations.

We do not deem it necessary, in view of the conclusion here reached, to notice the point raised by the special demurrer that several causes of action have been improperly united.

The judgment is affirmed.

(9 Cal. App. 111) NATIONAL CYCLE MFG. CO. v. SAN DIEGO CYCLE CO. et al. (Civ. 515.) (Court of Appeal, Second District, California. Sept. 25, 1908.)

1. LIMITATION OF ACTIONS (§ 27*)-AccoUNTS. An action on an account for goods sold and delivered in 1894, in the absence of an acknowledgment of the indebtedness in writing, was barred in 1896 by the two-year limitations. Code Civ. Proc. § 339.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 133; Dec. Dig. § 27.*] 2. LIMITATION OF ACTIONS (§ 151*) KNOWLEDGMENT-EFFECT.

Ac

An acknowledgment in writing of a debt by the debtor before it is barred raises an implied promise to pay within the statutory period from the time of acknowledgment.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 617; Dec. Dig. § 151.*]

Goods were sold to defendant in 1894, and prior to 1896 it acknowledged the indebtedness in writing as required by Code, § 360, and an action was brought on account for the goods in April, 1899. Held, that the acknowledgment only extended defendant's liability for the period of limitations after the acknowledgment, so that the action was barred by the two-year limitations.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 617; Dec. Dig. § 151.*]

Appeal from Superior Court, San Diego County; E. S. Torrance, Judge.

Action by the National Cycle Manufacturing Company against the San Diego Cycle Company and others. From a judgment for part of defendants, and from an order denying a new trial, plaintiff appealed. Affirmed.

Cassius Carter and Fred O'Farrell, for appellant. Wright, Schoonover & Winnek, for respondents.

ALLEN, P. J. Appeal by plaintiff from a judgment in favor of defendants other than Easton, and from an order denying a new trial.

This appeal presents various interesting questions, all of which are ably presented and insisted upon by counsel for appellant. An examination of the record, however, discloses that, were the correctness of appellant's position conceded as to all of the questions involved other than that of the statute of limitations, nevertheless the finding of the court in relation to such bar of the statute is sufficient to defeat plaintiff's recovery, if the finding in relation thereto. has support from the evidence. With this in view no good result would follow a detailed investigation into and determination of the other questions presented.

The action is based upon an account for goods sold and delivered. during the year 1894. Assuming, as before stated, that appellant is warranted in its contention that a partnership existed between the defendants and the liability for the price and value of the goods sold attached jointly to all the defendants, nevertheless the two-year bar of section 339 of the Code of Civil Procedure, in the absence of any acknowledgment in writing of the indebtedness, attached in the year 1896. There is, however, in the record certain letters signed by the San Diego Cycle Company, claimed by plaintiff to be the copartnership, which may fairly be construed as acknowledgments upon the part of the San Diego Cycle Company of its liability. All of these written acknowledgments, how ever, are of date preceding January 1, 1896. This action was commenced in April, 1899. The court finds all of the accounts barred by the provisions of section 339, and the question presented is as to the effect of such ac knowledgment in writing so made by the

debtor as affecting his continuing liability on account of the indebtedness. It is established that from such an acknowledgment an implied promise to pay arises. Section 360 of the Code of Civil Procedure provides: "No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby." In McCormick v. Brown, 36 Cal. 180, 95 Am. Dec. 170, our Supreme Court, in construing this section, says: "The acknowledgment or promise made while the contract is a subsisting liability establishes a continuing contract; and, when made after the bar of the statute, a new contract”while in Southern Pacific Co. v. Prosser, 122 Cal. 417, 52 Pac. 836, 55 Pac. 145, Mr. Chief Justice Beatty, in speaking for the court, says: "When a debtor makes a new promise before an action is barred upon the original contract, he does not make himself liable a second time for the same debt, and the old promise is not merged in the new. He merely continues his original liability for a longer term. In other words, he merely waives so much of the period of limitations as has run in his favor." In our opinion these cases determine that the effect of the acknowedgments upon the part of the San Diego Cycle Company was but to continue their liability from the date of the last acknowledgment until the expiration of two years therefrom; and, it affirmatively appearing that such period expired before the commencement of the action, all of the causes of action set out in the complaint were barred, and the trial court did not err in so finding.

Judgment and order affirmed.

POHEIM v. MEYERS. (Civ. 501.) (Court of Appeal, First District, California. Sept. 14, 1908.)

1. VENDOR AND PURCHASER (§ 123*) CONTRACT OF SALE-RESCISSION BY VENDEE— FAILURE OF TITLE-PLEADINGS.

Where a contract for the sale of land provided for an examination of title by a title insurance company, and that the issuance of a policy by the company without objection should be conclusive of the validity of the title, a complaint in an action by the purchaser to rescind the contract, and to recover the deposit for failure of title, which did not allege that the company examined the title or objected thereto, or that the title was such that the company would not issue a policy thereon without objection, was defective.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 224; Dec. Dig. § 123.*] 2. EVIDENCE (§ 46*)-JUDICIAL NOTICE.

Under Code Civ. Proc. § 1875, providing that courts take judicial notice of public and private official acts of the legislative, executive,

and judicial departments of the state, courts take judicial notice of the existence and effect of holidays declared by the Governor following the earthquake and conflagration of April 18, 1906.

[Ed. Note. For other cases, see Evidence, Cent. Dig. & 68; Dec. Dig. § 46.*]

3. CONTRACTS (§ 346*)-WAIVER-PLEADINGS AND PROOF.

A plaintiff relying on a waiver of conditions of his contract must both plead and prove such waiver.

[Ed. Note. For other cases, see Contracts, Cent. Dig. § 1732; Dec. Dig. § 346.*]

4. VENDOR AND PURCHASER (§ 123*)-CONTRACT OF SALE-RESCISSION BY VENDEE.

A vendee in default in the performance of the conditions of a contract for the sale of land, whereof time is of the essence, and who has not tendered the balance of the money payable under the contract, cannot on the ground of failure of title recover a payment made thereunder. [Ed. Note. For other cases, see Vendor and Purchaser, Dec. Dig. § 123.*]

Appeal from Superior Court, City and County of San Francisco; James M. Troutt, Judge.

Action by Joseph F. Poheim against R. C. Meyers. Judgment for defendant, and plaintiff appeals. Affirmed.

Maddox & Loessel, for appellant. Charles W. Slack and Perry Evans, for respondent.

HALL, J. Plaintiff brought this action to recover the sum of $500, paid by his assignor to defendant, as a deposit or first payment on a contract to buy a certain piece of land for the total sum of $14,625. Judgment went for defendant, and this appeal is by plaintiff from such judgment, and was taken within 60 days from the entry thereof.

The complaint is in two counts, each of which was demurred to as not stating a cause of action. The demurrer was sustained as to the second count, and appellant claims that the court erred in so doing.

The second count of the complaint is framed upon the theory that the plaintiff, as the assignee of the vendee, had rescinded the contract because of a failure of consideration, in that the title of plaintiff was not a merchantable title, in that it was not ascertainable from the public records of the city and county of San Francisco. Attached to the complaint, and made a part of the second count thereof, is the written contract entered into between plaintiff's assignor and defendant. This contract provides that "thirty days from date are allowed to examine title to said property, which examination is to be made by the California Title Insurance & Trust Company, and the issuing of a policy by the said company without objection shall be conclusive of the validity of the title. If such policy be issued without objection, the balance of the said purchase price shall thereupon be paid to the said owner, who shall deliver to the purchaser a sufficient grant, bargain and sale deed for the

said property, at the sole cost and expense of the purchaser." Other provisions relate to the removal of objections if any should be reported, but from the foregoing provisions of the contract it is apparent that the title agreed to be conveyed was such as the designated company would be willing to insure without objection. It is nowhere alleged in the second count of the complaint that said company ever examined said title, or was ever requested so to do, or made any report thereon, or any objection thereto, or that the title was in fact such that said company would not issue a policy thereon without objection. The parties have a right to contract for such title as they see fit, and, when they have made such a contract, the vendee may not rescind for failure of title without alleging a failure of such title as he contracted for. His attempt in the case at bar by certain allegations which he has made as to the meaning of the contract as it concerns the title cannot strengthen his case. The contract is a part of his complaint, and is plain and unambiguous. It speaks for itself. He has not alleged that the title was not such as is called for by the contract. The court did not err in sustaining the demurrer to the second count of the complaint.

By the first count plaintiff seeks to recover the same $500, and makes the contract a part also of this count. The contract is dated April 4, 1906, and besides the provision allowing 30 days for examination of title, and making the action of the designated company thereon conclusive as to the validity of the title, hereinbefore set forth, it provides: "If any objections are reported, said owner shall remove the same within thirty days thereafter, and, when so removed, the balance of the said purchase price shall be paid to said owner and said deed delivered as aforesaid. If such objections be removable and are not so removed within said lastmentioned time, said deposit shall at the option of the purchaser be returned to said purchaser, and all rights and obligations hereunder shall be at an end. If such objections be of a character that cannot be removed within 30 days, this agreement shall be at an end, anything herein contained to the contrary notwithstanding. If said purchaser shall fail to comply with any condition at the time and in the manner herein provided for, said owner shall be released from all obligations hereunder and all rights hereunder, legal and equitable, of said purchaser, shall be forfeited as liquidated and agreed damages and not as a penalty for such default. Time is of the essence of this contract."

Plaintiff does not in his complaint allege that he or his assignor complied with the requirements of the contract as to searching title and reporting any objection thereto within the time allowed by the contract, but alleges that by reason of the act of God it was impossible for the vendee (Katherine D.

Poheim) to procure an examination of said title, and to report the result thereof to defendant, at any time prior to July 3, 1906, but that on said day she did procure from the California Title Insurance & Trust Company a report of their examination of said title, and forthwith reported to defendant a valid objection thereto, and demanded that he remove the same within 30 days. She further alleged that he did not remove said objection within 30 days. The only excuse pleaded by plaintiff for not making objection to the title within the time allowed by the contract is prevention of performance by reason of the act of God. The court, however, found that it was not impossible by the act of God, or for any cause, for said Katherine D. Poheim to procure from said California Title Insurance & Trust Company an examination of said title, or to report the result of such examination to the defendant, within the time specified in the contract, and that her failure to obtain such report and to report the result of such examination to defendant within the required time was the result of her own neglect. The court further found that the vendee reported the objection to the title to defendant on July 7, 1906, and that he removed the same on July 11, 1906. Appellant challenges both of these findings as not supported by the evidence, but we think that both are fully supported by evidence in the record. By the terms of the contract 30 days from April 4, 1906, were allowed for examination of title. By the successive holidays declared by the Governor of the state, following the earthquake and conflagration of April 18, 1906, her time for the examination of and report on the title was extended to and included the 4th day of June, 1906, under the terms of the contract. Of the existence and effect of these holidays the court must take judicial notice. Code Civ. Proc. § 1875; Mullan v. State, 114 Cal. 578, 46 Pac. 670, 34 L. R. A. 262; French v. Senate, 146 Cal. 604, 80 Pac. 1031, 69 L. R. A. 556. Plaintiff, acting for his mother, the vendee, made application to the California Title Insurance & Trust Company for an examination of and policy on the title to the property, according to his own testimony on April 6, 1906, though his written application bears date April 11, 1906. While the evidence shows that the said company ceased business for a while after April 18, 1906, it also shows that it resumed business on May 28, 1906, and that it had completed its examination of said title and had its report completed and ready for delivery on June 4, 1906. But neither the vendee nor plaintiff applied to said company for a report thereon until July following. It is thus clear that the vendee was not prevented by any act of God from getting her report on June 4, 1906. It was then ready and in the hands of her own agent, the California Title Insurance & Trust Company, employed by her to make such examination and report. Further,

though there is evidence that said company ceased doing business for a time after April 18, 1906, there is not one word of evidence in the record that it was compelled to do so, or that its plant was in any way injured or disturbed by any act of God, or by any earthquake or fire. If plaintiff relied on the earthquake as the act of God, he has not shown that such earthquake interfered with the work of the Title Insurance Company in examining this title. For aught that appears in the record, the examination may in fact have been made before April 18th. But, however this may be, the Title Insurance & Trust Company was itself employed by the vendee, and was her agent for the purpose of examining and reporting on the title. That it was not prevented by any act of God from making such examination and report on or before the 4th day of June, 1906, which was the last day for making such report, is conclusively shown by the fact that the examination had been made and the report was prepared and ready on that day.

As to the finding to the effect that the objection was removed within 30 days from notice thereof, the evidence shows that the objection was that no "city deed" had ever been given for the property. Notice of the objection was given July 7, 1906, and on the 11th day of the same month defendant deposited with the California Title Insurance & Trust Company $100 to remove such objection. The representative of the California Title Insurance & Trust Company testified to the effect that on the payment of this $100 the company would itself get the deed from the city, and would issue the policy without objection. As we understand the evidence of this witness, it was to the effect that immediately on the payment of the $100 the company was willing to issue its policy on the title to the property without exception or objection for want of the city deed. On this point defendant testified that, when he made the deposit of the $100 with the company, "they" stated that "they" were then willing to issue the policy without an exception on account of the city deed. This removed the only objection made to the title. Of this, of course, the California Title Insurance & Trust Company had notice. It was employed by the vendee to examine and report on the title, and was her agent for that purpose, and its knowledge was her knowledge. All uncertainty as to the effect of the clause in the contract, "the issuing of a policy by the said company without objection shall be conclusive of the validity of the title," was removed by a stipulation that it meant "the willingness of the company to issue a policy without objection upon the receipt of an appropriate deed from the seller shall be conclusive of the validity of the title."

Appellant further urges that the finding

as to the removal of the objection to the title is contrary to the admission in the answer. This we think is without merit. The contention is based on the answer as originally filed, but at the trial defendant was permitted to amend his answer by adding at the end of paragraph VI thereof the following: "And the defendant further alleges that, if the said objection had any validity, the said objection was removed by defendant within thirty days after the receipt by him of said alleged objection." Appellant suggests that the evidence shows that defendant waived the default of plaintiff, but no such issue is raised by the pleadings. When a plaintiff

relies on a waiver of conditions of his contract, such waiver must be both pleaded and proved. Lanitz v. King, 93 Mo. 513, 6 S. W. 263.

Plaintiff does not claim to have ever tendered the balance of the money payable under the contract, and, being in default in the performance of conditions upon a contract in which time is of the essence of the contract, he cannot recover the payment made to defendant. Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 55 Pac. 713, 43 L. R. A. 199, 69 Am. St. Rep. 17; Bradford v. Parkhurst, 96 Cal. 102, 30 Pac. 1106, 31 Am. St. Rep. 189; Joyce v. Shafer, 97 Cal. 335, 32 Pac. 320; Garberino v. Roberts, 109 Cal. 125, 41 Pac. 857.

The judgment is affirmed.

PEOPLE v. SHEFFIELD. (Cr. 95.) (Court of Appeal, Second District, California. Sept. 28, 1908.)

1. INDICTMENT AND INFORMATION (§ 87*) — TIME OF OFFense-SUFFICIENCY OF ALLEGATION.

An information charging rape of a child "on or about" a specified date within the statute of limitations was sufficient, since under Pen. Code, § 955, the precise time of an offense need only be stated, where time is a material ingredient of the offense.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 244-255; Dec. Dig. § 87.*]

2. RAPE (§ 4*)--RAPE OF CHILD-MARRIAGE OF CHILD MATERIALITY.

In a prosecution for rape upon a child, it is immaterial whether she had been married; it being sufficient that she was under the age of consent, and not accused's wife.

[Ed. Note.-For other cases, see Rape, Dec. Dig. 4.*]

3. CRIMINAL LAW (§ 785*)-INSTRUCTIONS— CREDIBILITY OF WITNESSES-INTEREST-INSTRUCTIONS.

An instruction that the presumption that a witness speaks the truth may be repelled by any interest, bias, or prejudice, while going beyond Code Civ. Proc. § 1847, providing that the presumption may be repelled by the manner in which he testifies, the character of his testimony or evidence affecting his character for