into Court. Upon these and the usual formal allegations he asks that the plaintiff be compelled to convey said premises to him, defendant. To this cross-complaint the plaintiff demurred on the ground that it did "not state facts sufficient to constitute a defense to said action, or a cause of action against the plaintiff." The demurrer was sustained, and a judgment entered in favor of plaintiff, from which the defendant appeals to this Court. The If the allegations of the cross-complaint are sufficient to entitle the defendant to a judgment for specific performance, it was error to sustain the demurrer. Those allegations, as we construe them, are to the effect that the railroad company, being the owner of the land described in the plaintiff's complaint, offered to any one who would settle upon and improve it to sell it to such person, as soon as the company should fix a price upon the same, at the price so fixed. defendant accepted that offer by settling upon and improving said land, and he notified the company of his acceptance by filing in its office an application to purchase as soon as the price should be fixed. If we have here an offer on the one side, and an acceptance on the other, then we have a contract before us which a Court of equity might decree a specific performance of. In the brief of counsel for the plaintiff the position is taken that "the alleged circular was not a contract, but simply an offer." We concur in that view of it, and we likewise concur in the following: "It was at most but a proposal, and became a contract capable of specific enforcement only when it had been accepted, without unreasonable delay, and in such unequivocal form as to bind the party accepting, and when the acceptance had been communicated to the company. The proposal was that the defendant should settle upon and improve the land, and file an application to purchase it, and that as soon as the price of it was fixed the company would sell it to him at that price. He accepted that offer by doing all that he could do before the price was fixed. But the price could not be the subject of any future negotiation, because it was agreed that it should be fixed by the company. We think that the contract in this case belongs to that group which is said to be "created by representations made by one party, and acts done by the other party upon the faith of such representations. (Pomeroy on Contracts, Section 69.) "Where an absolute unconditional representation of something to be done in the future is made by one person in order to accomplish a particular purpose, and the person to whom it is made, relying upon it, does the acts by which the intended result is obtained, a contract is thereby concluded between the parties." (Id.) The objection that the defendant, by his acceptance, did not bind himself to buy the land upon the terms proposed by the company, does not seem to us to be tenable. His acceptance is evidenced by his settling upon and improving the land, and by filing an application to purchase it. Both by acts and in writing did he manifest such acceptance. If that did not bind him to purchase the land on the terms proposed by the company, we can conceive of no form of acceptance by which he could bind himself to purchase it on those terms. The objection that the defendant did not accept the offer of the company within a reasonable time is based upon what we conceive to be a misconception of the character of the transaction. As we view it, the contract was complete as soon as the defendant settled upon the land and filed his application to purchase it. He was not, by the terms of the contract, to pay for it until the price was fixed by the company. As that was to be done by the company alone, it was the duty of the company to notify him of the fact that it had been done before he could be required to pay, or be held to be in default for not paying the price so fixed. This the company was bound to do by its proposal or representation, in which it is stated that "where two or more applications for the same land were filed, the rights of the several applicants to purchase said land should be adjudicated by the land agent of said company, upon due notice given by the said company to the said several applicants." This land was sold to the plaintiff, and the defendant alleges that he did not know of said sale, or that the plaintiff had applied to purchase it, or that a price had been fixed upon it, until two years after it had been actually conveyed to the plaintiff. The defendant alleges that the plaintiff, before and at the time of purchasing, had knowledge of the agreement between the defendant and the railroad company, and of all of the defendant's acts thereunder. If so, the plaintiff took the land impressed with the trust in favor of the defendant, and holds it in trust for the defendant, and can be compelled at the suit of the defendant to specifically perform the agreement of the railroad company, by conveying the land in the same manner and to the same extent as the railroad company would have been liable to do had it not transferred the legal title; and the plaintiff is the proper party in the suit against whom to demand the conveyance. (Pomeroy on Contracts, Sec. 455.) In Peart vs. Gilmore, No. 5861, in this Court, although no opinion was filed, an inspection of the record satisfies us that all of the questions arising in this case are analogous to those that were before the Court, and must have been considered and passed upon by it in that case; and in affirming the judgment in that case, the Court must have held as we now hold. Judgment reversed, with directions to the Superior Court to overrule the demurrer of the plaintiff to so much of defendant's answer as is demurred to by said plaintiff. We concur: Thornton J., Myrick, J. DEPARTMENT No. 2. [Filed August 30, 1880.] JOHN JACOBI, RESPONDENT, vs. JOHN BAUR, APPELLANT. DAMAGES COSTS. Plaintiff in an action for slander is not entitled to costs if he recover less than $300 damages. Appeal from the District Court of the Twenty-second Judicial District, Sonoma County. George Pearce, for respondent. E. S. Lippitt and Barclay & Hanley, for appellant. This was an action to recover damages for slander. The plaintiff had a verdict for one dollar. He filed a memorandum of costs and disbursements, amounting to $390.25, which defendant moved to strike out. This motion was denied by the Court, and defendant excepted. Defendant appealed from the judgment and the order denying his motion above mentioned. We are of opinion that the Court erred in denying the motion. The seventh section of the Act of the 23d of March, 1872, entitled "an Act concerning actions for libel and slander" (Statutes of 1871-72), does not give plaintiff recovering judgment any cost beyond the amount allowed by the general law as provided in the Code of Civil Procedure. The costs are left as under the general statute. By the general law, the plaintiff is not entitled to any costs at all, having recovered less than $300. The judgment is affirmed, and the order denying defendant's motion to strike out is reversed. DEPARTMENT No. 2. [Filed August 11, 1880.] No. 7212. BOARD OF TRUSTEES OF STATE LIBRARY, PETITIONER, VS. D. M. KENFIELD, CONTROLLER, ETC., RESPONDENT. STATE LIBRARY. Trustees are authorized to draw from the State Treasury, at any time, all the moneys therein belonging to the Library Fund; and their judgment as to what books, etc., may be proper to be added to the library is not subject to review by the Board of Examiners. Petition for writ of mandate. H. C. Freeman, for petitioner. MYRICK, J., delivered the opinion of the Court: This is an application for a writ of mandate requiring the respondent, State Controller, to draw his warrant upon the State Treasurer, in favor of petitioners, for moneys in the State Treasury belonging to the State Library Fund. The objection is urged by respondent that the books, etc., required for the library should first be purchased, and the claims therefor be presented to the Board of Examiners for their inspection and approval. We do not think that the transactions of the Board of Trustees are the basis of claims within the meaning of Section 660, Political Code. The chapter of the Political Code relating to the State Library places the library under control of the Board of Trustees, and authorizes the Board "to draw from the State Treasury, at any time, all the moneys therein belonging to the library fund; and the librarian is to purchase books, maps, engravings, paintings, and furniture for the library," according to such rules and regulations as the Board of Trustees may prescribe. Their judgment, then, as to what books, etc., may be proper to be added to the library is not subject to review by the Board of Examiners. Let the writ issue as prayed for. We e concur: Sharpstein, J., Thornton, J. DEPARTMENT No. 2. [Filed August 16, 1880.] M. T. SPARKS ET AL., RESPONDENTS, VS. THE BUTTE COUNTY GOLD MINING COMPANY ET AL., APPELLANTS. MECHANICS' LIEN. Must be filed within thirty days from the completion of the contract. "MATERIAL MAN"-"ORIGINAL CONTRACTOR." Unless the persons who worked for appellant upon the materials which he furnished to the corporation defendant would have a lien upon the building in the construction of which they were used, for the value of their labor, then he is not a contractor within the meaning of that clause of the Code. And if he be an original contractor, his lien is subsequent to all other liens. Appeal from the District Court of the Second Judicial District, Butte County. Harrison & Harris, for respondents. SHARPSTEIN, J., delivered the opinion of the Court: The plaintiffs brought this action for the foreclosure of mechanics' liens upon the property of the defendant corporation, and the appellant was made a defendant on the ground that he claimed some interest in or lien upon the property which the plaintiffs were seeking to foreclose their liens upon. Appellant, in his answer, admitted all the allegations of the complaint, except that his lien was subsequent and subject to the liens of the plaintiffs. That he denied. The respondents contend that the appellant is a "material man, and not an "original contractor," and therefore should have filed his lien within thirty days from the completion of the building. The defendant alleges that he entered into a contract with the corporation defendant "under and by virtue of which he furnished to said defendant certain materials to be used, and which were actually used, in the construction of a certain building structure or mining claim," upon premises owned by said corporation. He further alleges that he "has fully performed all the conditions of said contract on his part to be performed; and said contract was completed, and said building, structure, or mining claim was completed, |