Newspaper Page Text
6
RIVER IMPROVEMENT.
Reasscmbiing of the Cor.ver.tio:i, and
Seme Warm Discussion.
A Proposition to Have tiie State
Reclaim Swamp I-ands Is
Xot Approved.
The California River Improvement
Convention reassembled yesterday after
noon at Firemen's Hall for the lirst time
■face last winter.
Chairman P. E. Platt called the conven
tion to order, and stated that the session
was a special one. called for the purpose
of hearing the report of the Executive
Committee, and also consider the advisa
bility of requesting the Legislature to
make an appropriation for the improve
ment of the river banks. In conclusion,
Mr. Platt said that, inasmuch as a num
ber of the delegates to the convention
were representing their respective dis
tricts ai the Capitol, and could not attend,
it might be advisable to postjwne the
meeting until evening.
The Chairman's idea, however, did not
meet with the approval of all those pres
ent. Some of them said they had conic a
long distance, and were anxious to get
through, so it was decided to go on with
the business before the convention.
Senator Rose, of Colusa, moved that a.
Legislative Committee of five bo ap
pointed, to consider the proposition of
petitioning the Legislature for an appro
priation for the reclamation of lands along
the river banks.
THE FIRST OBJECTION.
It had been whispered about prior to
the assembling of the delegates that the
appropriation proposition was going to
meet with some opposition.
Mr. Rose's moti<Ai was productive of
the lirst "kick."
Mr. Berry, of Butter County, took the
floor and said he considered tlie Senator's
motion premature. A legislative coin-'
miitee should not be appointed until the
convention had determined the nature of
tlie legislution desired^-if any legislation
was necessary. Such a committee might
recommend something that did not suit,
and all its work would be lost.
Dr. G. M. Dixon, of this city, said he
understood the proposed committee was
only to act for the afternoon, and its duty
Would not be to draw up any bill for the
Legislature.
Alter some further discussion, Senator
Rose withdrew his motion.
EXECUTIVE COMMITTEE'S WORK.
The subject was then dropped tempo
rarily, and Dr. Dixon, Chairman of the
Incentive Committee, was asked for the
report of that committee. He gave it
verbally. He s:iid that the committee
went to work immediately after the ad
journment of the convention which ap
pointed it, last winter, and oollected <!::•:!,
maps, etc., and the members placed
themselves in communication with the
California representatives at Washington.
It seemed at tirst that the committee
would have an easy task, but the mom
ben soon found out their mistake. They
found that the only way fco get the atten
tion of Congress to their desires was to
send a delegation there, so the river coun
ties were asked for contributions for this.
Some of the counties responded magnan
imously, but others did not. The delega
tion went, however, and did good work.
He was sure that, had not the delegation
gone to Washington, the river improve
ment proposition would be no further
along than it was two years ago. Not
that the California Senators and Repre
sentatives did not give the matter the at
tention tlmt they should, but because it
was tip-hill work and it was difficult to
attract the attention of Congress.
THE WASUIN<iT<«r DELEGATES.
By request, Senator Rose and Mr.
Ohleyer gave the convention some infor
mation regarding the manner in which
they, as members of the delegation that
went to Washington, worked and what
they accomplished. Both were satisfied
that all that could be done was ac
complished, and that in the course of
time the river counties will get what they
desire. Tho Government did things on
methodical and business principles, and
did not appropriate money for schemes
with which it was not thoroughly ac
quainted. They considered that the Gov
ernment acted wisely in appointing a
Hoard of Engineers to make surveys and
estimates and suggest- plans before any
appropriation is made. The delegation
found that there w:us a suspicion among
tiie Washington authorities that the
scheme was being gotten up to benefit a
few private interests, and it was difficult
to disabuse their minds of this suspicion.
Engineer Marsden Manson, of San
Francisco, who was also one of the dele
gation, made similar remarks.
<'. E. Grunsky suggested that the prin
cipal business now before the convention
Was the providing of means of assisting
as much am possible tlie Board of En
gineers, which was to report to Congress;
and next, the suggestion of any legislation
that might be necessary regarding any
"w ork to he done by the State.
Dr. Dixon offered a resolution to the
effect that a committee of seven be ap
pointed by the Chair, whose duty it
would be to assist the Hoard of Engineers
In the way of furnishing data and other
information. The resolution was adopted.
The Chair announced that the commit
tee would be appointed later.
THAT ORI KCTIONABLK BILL.
HScnator Rose then suggested that the
proposition to put a bill before the Legis
lation, bo token up. Most of them wished
to discuss the matter and wanted to get
through with it.
A roll of type-written matter was pro
duced from somebody's inside pocket and
handed to Secretary Grunskv to read.
It was very lengthy, it provided,
briefly, thai the State should make a large
appropriation for the purpose of reclaim
ing swamp lan,is and overllowed dis
tricts—draining lands and strengthening
levin s.
After the reading of the bill tho con
vention took a recess.
After the convention reassembled in
the evening. President Platt stated that
the evening would be devoted to the dis
cussion .>f t!v proposed bill.
E. E. Leake was the first to address the
assemblage. He said he did not believe
it was in the province of the convention
to consider tho bill at all. The members
Were not appointed to do any such thing
but to memorialise Congress'to make an
appropriation lor preserving the naviga
ble streams of the State, lie did not be
ueve they had any authority to consider
the bill which had been prepared.
NOT TITE CONVENTION'S BUSINESS.
Mr. Leake then asked permission to
read a paper prepared by George < >hlcyer,
and he was allowed 10 do so. Mr. Ohleyer
used the argument that the convention
was called upon to act on a measure en
tirely foreign to the purpose for which il
was constituted. The State had no inter
est in the matter of reclaiming the swamp
land districts; the expense should be
borne by the owners of the land. The
subject brought before the convention
was a complete departure from its pur
jvwes, and he raised a point of order and
objected to any discussion of the bill.
President Phut stated that although he
Highest of all in Leavening Power.—U. S. Gov't Report, Aug. 17, 188^
£%&£%£s . & UVfUvl
ABSOU/TE&X PURE
was a member of the Executive Commit
tee which bad .dcawn up the bill, ho bad
not met with them and had not seen the
bill tili it had hf n read yesterday after
noon. He hau ..jt changed his views on
the subject, and believed that the conven
tion was established lor no other purpose
than the possibility <>'f fixing th&respon
sibility on the General Government.
Mr. Platt was about to remark that he
thought the point of order was well taken
when Mr Rose, of Colusa, asked permis
sion to say a few words.
SEXATOK ROSE'S VIEWS.
"I must confess," said he, "that this is I
a very singular proceeding, when a man |
gets up and, alter making a Ions? argu
ment on a point of order, asks that tho
Chair decide without hearing tht- other
side. I desire to say this, that the condition
of the country a yearago was one of >vcr
flow and disaster. Hut for this condition
the convention would not havoboen called.
The people were sufforing from flood and
they wanted to relieve themselves. It
was important that they appeal to the i
General Government for aid. There was >
no Legislature in session at tho time the
Hoards of Supervision of the overflowed
districts appointed the delegates to the
convention, but Congress was. We took
the position that we should embark on
any plan propored for the carrying out of
our purpose*. 801110 general system of ,
reclamation was needed In the entire |
State, for a hundred of millions of dollars
were lying dormant in the heart of the
State. The movement which we pro
posed, namely, to seek aid from the State,
will not endanger the aid which wo ex
pect.from Congres% Ido not believe the
members of this convention who are op
posed to considering the bill were bound
t>y iron-dad rules not to consider the
question of obtaining State aid."
WOULD DO NO HARM.
Doctor Dixon said he did not under
stand by any means that the convention
was restricted solely to the matter of de
vising means for obtaining aid from the
Federal Government. The Executive
Committee had worked day and night in j
preparing the bill for the good of the peo- I
nle living in the vaileys of the State.
There were two things to be considered.
The first was that which devolved on
Congress to dredge out the rivers and :
make the streams navigable;, and the sec
ond was that Jwhieh would naturally lull
on the Str.to, to care for the swamp lands
and establish a system of drainage for
them. The State should fortify the work 1
of the Government by draining the hinds 1
and strengthening the levees. He I
thought the bill should be fairly consid
ered and then if the convention chooßed,
it could vote it down.
Mr. Barry of Sutter County said he had
no objection to considering the bill as an
individual and a citizen, but he did ob
ject to considering it as a delegate ap
pointed by his Hoard of Supervisors,
The measure was never contemplated by
them, and he believed that two years
hence would be a more opportune time
to discuss the bill. He favored the point
of order as made by Mr. Leake.
E. H. Wilbur and others spoke against
considering tho bill, and Others believed
that it was a pertinent matter and was
important.
THE HILL KNOCKED OUT.
Chairman Platt ruled that the point of
order as made, was well taken.
Mr. Rose appealed from the ruling of
the Chair, but upon a vote it was sus
tained.
A motion was then made that the con
vention request the Legislature to appoint
a committee of three from each house- to
lend aid to the Government Board of En
gineers in the work of finding out the
needs of the rivers.
A lively dis'-ussion ensued and the mo
tion was lost by about a two-thirds vote.
Secretary Grunsky, by request, read the
resolution introduced by Assemblyman
Clark last Thursday reviewing the condi
tion of the Sacramento River, and advis
ing that means be obtained to improve it.
It was ordered that the sentiment of the
resolution be indorsed.
On the suggestion of Senator Dray, a
committee of three was appointed to'sec
that any resolutions or bills passed by
the Legislature would get to Washington.
Mr. Platt appointed Eugene J. Greg
ory and Ed Leakejand, the convention in
sisting, he consented to serve on the
committee himself.
Doctor Dixon wanted to know how the
funds at the disposal of the convention
stood. He said he thought the committee
of seven appointed at the afternoon ses
sion to assist the engineers in obtaining
information as regards the needs of tho
river would incur some expense, and he
did not Inslicve there was much money in
the treasury.
Treasurer Eugene J. Gregory informed
the convention that there was left £24 il.
we'll, go for the supervisors.
Several of tiie delegates present offered
to contribute from their own pockets, but
Doctor Dixon moved that the members
ask the Boards of Supervisors of their
respective couuties to make a liberal ap
propriation toward defraying the ex
penses of tho convention/ The motion
was carried.
Upon motion of Mr. Gregory, it was
ordered that a vote of thanks be tendered
the gentlemen who constituted the dele
gation who went to Washington and suc
ceeded in getting Congress to appoint the
Board of Engineers to examine the rivers
in the State.
A vote of thanks was also tendered the
officers of the convention, after which the
meeting adjourned, subject to the cail of
the Chair.
TnEY WILL ASSIST.
The following seven gentlemen were
appointed a committee to consult with the 1
Government Engineers and give them
such information as they desired con
cerning the condition of the rivers: Doctor
Dixon, Wm. Johnston. Eugene J. Greg
ory. Marsden Manson of San Francisco,
George Ohlever of Tuba City, Dr. Stone
of M:irysville, A. H. Kose of Colusa, and !
A. K. BriggsofSan Francisco.'
The committee organised last evening
by electing the following officers: Presi
dent. Doctor Dixon; Vice-President,
Wm. Johnston; Secretary, Marsden Man
son Treasurer, Eugene J. Gregory.
BRIEF NOTES.
The pay-roll of the State Printing j
Oflice for the past two weeks amounted
to $6\0.J0 t<o.
Joseph Judd. Chief Engineer of tho
Water Works, reported that 25,531,000 gal
lons of water were pumped during t!io
past wcol:. The nir.nin^ time of tlie
Holly enjrhie was 121.) hours, and the Stev
ens oOi hours.
M. K. Hammer has lately had a now
and modern plate-glass front placed in
hi.s drug store, corner Fourth and X
street.-?, which is a great improvement,
and when its twelve gas jets are lighted,
with aw many colored bottles, present a
brilliant effect.
There Was an installation of officers of
tlie Dania Society, at the Knigbta of
Pytliias Hall, Saturday eveninir. Tho
officers were installed by Grand Presi
dent R. Dryer, and were as follows:
President, C. Simonson; Vice-Prcsl.i.-nt,
N. Jensen; Secretary, A. Johnson; Treas
urer, R. l>ryer; Insido (Suard, H. K.
Jacobson; Cortdactcr. G. Norman; Trus
tees, J. Lund and A. Anderson; Dele
gate to Grand Lodge, A. Anderson.
Weather Forecast.
Forecast till S r. M. Tuesday: For Northern
California—Fair weather; frosts.
«.
Of exquisite flavor, pure and whole
some. Angostura Bitters is :\ standard
table delicacy. Sole manufacturers!, l)r.
J. <i. B. Sicßert it 80ns.
1
SACRAMEXTO DAILY BECOHD-TTXIO^, TUESDAY, JAKUABY 13, 1891.—SIX PA&JSS.
SUPREME COURT DECISIONS.
[Filed January 6, 3 891.]
Appeal from Superior Court, Sim Luis Obis
po county— V. A. Greg*:. Judge.
flor appellant, Graves, Turner <fc Graves.
For respondent, liaggln i Van Ness, of coun
sel J. M. wnooxMn.
DEPARTMENT TWO.
Lynch, Appellant, )
_ V& VNo. 13,743.
Y\ i.i.ry, Respondent.)
This action is for the recovery of §3,623
damaL'' i, alleged to be sustained by reason of
an alleged breach of a contract of the parties,
, by the defendants. The contract was £ effect
that defendant* would purchase of the pialn
titt all the steers belonging to him on the 11 th
day of May. ISSS.thiit w«ro three .wars old
ana upwards, and that were then or that
would be merchantable' beef by the Ist day of
July, 1888, the number of which was esti
mated by-thd parties to be about 300 head.
And the parties further agreed that If there
should arise any question between iheii; as to
what steers would matte merchantable beef,
the question should be decided by arbitration,
; each partpto select one arbitrator, and If the
two coula not agree, they should select a 1 bird
to settle the question.
Pursuant to this agreement, plaintiff gath
ered ate said band of cattle, and the defend
ants selected therefrdm 00 head of tho largest
and most choice steers of s:iid band, and paid
the plaintiff therefor at the rate of 840 per
heart, ami requested plaintiff to barea&otn< r
1 and complete gathering of tbecattlcon the Ist
day of July, lt)88, at which time defendants
1 would take the remainder of the steers as per
agreement, and plaintiff nod gathered and
ready for delivery the. residue of hi.s band,
consisting of 17(> fiend of steer;, which be in
sisted tbon,and mJ;i InsiKts, were good'mer
chantable steers; Defendants refused to accept
all of caM steers, buiotti peel to actect from >a!.i
band only so many as in their opinion were
then merchantable beef-—18, or possibly 50
head, In ail. Thereupon plaintiff insisted uV>n
choosing arbitrators, us stipulated in mid
agreement, to decide how many of said steers
were merchantable beef; I'lointitf chose one
William Epperson,and too deftndants one A.
.1. Harris, with the understanding ii the-,
could not agree they should selects third per
son to act with I'.iciii.
It does not appear that the arbitrators so
Belectedever ductacd ttiat any of said steers
w« re nieiviuuHiiiiK! beef, or that they over
differed or foiled to agree upon how nuuiy
I were or wen not mciviKint.ihle beef, or thai
they ever selected a third person to act with
them. The only reason appenring in tho rec
ord for not proceeding with the arbitration is
that the defendant, Judge, announced thai he
I could not abide by the decision "( the arbitra
l-tors. Ho said j according to the testimony of
one of the witnesses, that Lynch was not will
ing to do anything toward settling tho matter,
and a-, far as bo, Judge, was concerned, he
would not have another thing to do with tho
I cattle, and turned and rode out <>l tho Held.
I That was evidently treated by all of the par-
I ties as a revocation by defendants of their
agreement to arbitrate. About two weeks
utter the failure to arbitrate plaintiff sold 170
head of cattle lo Lux St .Miller ft»r SS2!) <;>S per
head, and this action is prosecuted to recover
th« difference between the price which de
fendants agreed to pay for cattle of the kind
and quality specified in their agreement with
plaint ill', and the price paid for the 17U head
sold To Lux & Miller.
Whether the cattle which defendant* refused
to accept were of the kind and quality that
they agreed to take h a question upon which
there is a plain conflict of uvidi-iicc, and we
cannot disturb the verdict of tlie jury upon
th-it <jtu*si ion.
We : hi nk tlie instruct ions of the court placed
tl'.e matters in issue otfrly before the jury.
Judgment ami order umnned.
SHABFSFKOr, J.
WC concur:
Thomtob, .1.
McKauland, J.
f Filed January *». ISO!.]
Appeal from SupcriorCourl.Sun LuisObispo
county— V. A, tfregg. Judge.
I<ji appellant, William Hbipscy.
For respondent, V. U. Ditlurd.
DBPAKTMEKT TWO.
Ezha CakfKsi ::i;, Respondent. )
v>. No. 13,705.
A. It. Hatiiawav, Appellant, )
Plaintiff brought this aetioa to dissolve ■
partnership, for an Beeounting, and to estab
lish his interest In certain laii'is acquired as
partners, and obtained a Judgment in his
favor. Defendant appeals from the judgment,
also from an order dcuylng him a new trial.
The main lacis. .is show 11 by tho findings,
may be briefly stated as follows:
About. November 15, lsi^o, the plaintiff.
WOO WOS then (Xmnty Surveyor of Sim Luis
Obispo county, had ipfwtal knowledge of the
location and quality 01 certain huge tracts of
vacant Government land on the Ci.risa plains
in that county, then ottered m private sale im
•Si 35 per acre, but be was without mean* to
purchase any of the land,
<)n or aliout thai date he and the defendant,
who was possessed Of both mi ans and 1 :> dlt,
entered into a verbal agreement whereby the
I'laintii!', upon his part, agreed to assist in
pointing out. locating, and entering in the
name of the defendant, such portions of the
lands as the latter might deem it advisable to
purchase for tiieir joint benefit; and the de
iendant, upon his part,agreed, in considera
tion thereof, to furnish a ti-uni and wagon for
the Inspection of the lands, to purchase the
lands of the Government, and furnish toe
necessary money therelbr, and when so par
chased to lake ehar^; of and sell tin same tor
cash at a reasonable profit,aa opportunities
mi^ht occur; and after each sale to deduct
from the proceeds of each sale tl'.e price paid to
the Government for the land sold,and pay
over promptly to the pluintilf one-half of tho
remainder.
Between the date of the ■argument and the
sth day of June, 1888, the plaintiff and the
defendant bail, pursuant lo the agreement, ac
quired 3,189 acres of land, the title to which
stood in the name of the defendant. Upon the
latter date defendant gave plaintiff a written
acknowledgment to the effect that the de
fendant had acquired title from the United
st;'.t.t- Government t05.169 acres of land, and
that it. wus u;idc rstood and aureed that the
plaintiff wus to share equally with tin defend
ant in tiie net profits of tlie land.
Thereafter,about August 15, 1886, and pur
suant to tin same agreement,the <:. liinlant
acquired title to 640 ti res of land.
On April 1 1. lssr. while r.ll the Kinds were
still held under the agreement, the defi ndant
sold and conveyed to one A. I{. Taylor, a neur
n lative of the defendant, 1,937 acres of land
for the sum of 92 per acre, iif this price he
received but one dollurpor :'.ore, and volun
tarily, but without the plaiNtill's consent, and
contrary to their Og&tement, gave credit to the
grantee for the remainder of the purchase
i price, which stili remains unpaid, the defend
ant not haying taken steps to collect it.
Had this latter amount been collected, the
net. proceeds of the sale,after deducting the
sum of 91 2~> ]>cr acre paid u> the Govern
ment, would have btni the sum of $1,445,
one-half of which the plaintfff would nave
been entitled to. Defendant, however, jmirt
him but 9125 on account, which the plaintiff
admitted in his complaint.
On June 1,1889, and at. various times sub
sequently, tne plaintiff demanded of the de
fendant an account of the lands sola, and the
money received therefor, and :ds<, the pay
ment to him of his share of the net proceeds
Of the sale; but the defendant failed and re
fused lo render him imy account, or to pay
him any portion of the net profits of the sale,
except the sum of^l~iJ, admitud as before
.stated.
l'riortotlie first demand for nn account of
! the lauds .sold bating been made, that is, on
November 1, 18.^8, tho defendant received nn
oirer of S3 per aero for all the lands acquired
under tlie agreement, and was urged by the
plaintiff to accept it; but having sold a por
tion to TayloT he could not do so, ami has
ever since been unable to sell the remainder of
tbi Sands.
The land sold to Taylor was t lie only portion
of the lands that the defendant sold, and the
only amount of money, In which the plainti'l'
bod any interest, thai the defendant misap
propriated, was toe amount be gave bis rela
tive, Taylor, credit fir Indefinitely.
On these facts the Court awarded the
pUiintiu 8597 50, With legal Interest thereon
from the d.ite of the sale of the portion of the
land to Ti'.ylr.r. and an undivided one-half in
terest in the lands remaining nnsold, subject
however, to a lien in favor of the defendant
for the sum of sjii 28 per acre to cover the
purchase price he paid therefor to tho Govern
ment.
The defendant contends that the ■written
superseded the oral agreement, and that, ac
cording to the latter, the prolits were nut. to be
divided until all (lie tends were >oid.
Tho verbal atrrcement, alleged tn the com
plaint as the foundation of tho action, was en
tered into in November, 1885, and all the
land In question, except the i;io-acrc tract
was acquired pursuant to ir, nearly seven
months before the writing was made, which
defcndtuit cUiima superseded tho verbal agree*
meat.
The writing itself docs not contain anything
Inconsistent with the verbal agreements 't
merely star, s the substance of it. The only
witnesses examined in the cause were the par
tie* to it. nnd nowhere in their testimony does
it ai'jxar that the writing was rivenOTre
ceived as a contract which was intended to
supersede ail their previous negotiations and
etipolatloas concerning the same subji ct insit
ter. The defendant testified Unit; "There was
no written nKrcrmeuf tram January till June,
and the reason I made that little writing was
I was afraid that Carpenter was afraid of my
verbul airreement, and I told him at the time
my word was as good as my bond," (Kol.
ii;:.]
The plaintiff testified (fol. 101, 102): ">{y
(contract with rtfcfeindtuit become complete
when the Witting of June r.. 1 886. was exo
euW. That writing couuijni; \)w substance of
tlw agreement,"
Tlie foresoins Is all the testimony that was
civen concerning the writiim. and we think
the i-ourt was Justified in nnding therefrom,
In view of the contents of the writing it-self,
that it was {riven and received us a mere
aeknowledfcniunt or mi innrnndum of the V er
bal agreetneßf, The statement of the plaintiff
thiit the contract hr«s,mr onnipkip, e|«.. hiust
when read in connection with the defendant's
statement of the distrust with which he
thought plaintiff regarded Him, mean that he
(the plrJntiff) felt wife in huvin^a tangible
and complete acknowledgment O f • j le existence
of their verbal agreement and of hi« intercut
in tho land, the title to which stood wholly in
ther.ame. or the defc-iidnnt. The agreement
iu-eli was not completely performed at tho
time the written acknowledgment of it was
given to the plainti*!";" it was still executory
and remained so until the jiuljrnient heroin
was entered.
>"ov.\ as the vcrUil asrreement was, that, the
land, were to be sold for cash atareasonuMe
prolit, as opportunities to make sales should
occur, mid the prolits were to be divided
promptly after each sale, it !s clear that the
plaintiff was not compelled to wait until all
the lands were sold for his share of the profits.
iK-fenciantfurtlicrcoirteridß that, r.s he BBr
rowed money with which to purchase tlie
I lands and paid interest thereon, the profits
I should have been ascertained, in the court 'oe
low, by deducting from the price for which he
i sold :i portion of the lands to Taylor, not only
I the 912S per acre pajd to the Governmeut
1 therefor, but the interest he had paid thereon,
and the ;;i\ :s and otaer expenses necessarily
incurred tn acquiring, keeping, and disposh;;.;
of the property.
As to the interest, it is sufficient to sr.y that
it uas not stipulated for hi the agreement, and
as to taxes and other necessary expenses*even
if they were properly chargeable, there was no
evidence of them offered, nor claim imule
then for at the trial.
It is further urged that no provision was
made, for the payment of future taxes uj>on
the unsold portion of the lands in which
plaintiff was awarded an interest.
l! was not necessary to make any further
provision therefor, bec&usooa that portion of
the lands was divided equally between them
; and the plaintiff's interest made subject to si
lien for $3 35 per acre in favor of the defend
, ;u.i tt; secure the purchase price, the plaln
, tiff's Interest is taxable to himself alone, and
j not to the defend uit.
As to toe 'iid acres purchased under tho
agreement after the written acknowledgment
of June r>. 1886, w.--.< jiven. the Court in
I awarding the i.i.-.inti.f his half interest Lhere-
I in, in addition to the lien imposed thereon in
I favor of the defendant (or the price per acre
paid by him to the Government, extended
such lien to cover interest at the legal rate
] )rom the dale of tl.e puivluKf of the tract.
The finding upoa which this aHowaneu of
: Interest la based Is claimed to i<;' unsupported
:by the evidence, WeaMincttnod to think so,
i too; inn :is ii is in Cvvorof the defendant he is
not injured t»j- it.
1; is also claimed by the defendant that tho
I oio-acre tract was erroneously brought with
■■ in tho agreement. Tlie evidence that it. wm
acquired under the agreement is quite strong;
both parties testified that, it was so acquired;
!>ut the defendant, in order to defi at the plain
tiff 's claim respecting ii. tcstifled as follows:
"Tlie written declaration I Krtvc Carpenter
embraces all the loud described In the com
plaint, except the (mo acres in Bed ions r, and
<>, township 31 south, 10 east; that 1 acquired
in August afterwards. //' he kepi hi* agree
ment, that was to he tnehitted tn it." To which
we may odd, the court round that he fully
performed the agreement apon his part, and
this finding is supported !>y the evidence.
We- advise that the judgment and order be
affirmed. Giuson, <:.
We concur:
Belchbr, c.
Van Cuar, C.
TIIC OOUKT.
For the reasons given in the tibregoing
Opinion, the jiuigment and order are aflirmeU.
[Fited January :;, sw:n.]
Appeal i'roiii BnperioT (;onrt, Alameiia
County—(Name of Judge does not appear.;
Korappellant, (i. w.
Jfot fespondmt, l>. If. Oonuor.
DEPABTMENI TWO.
.1.-, jii.s T. Hvax. Rettpottdent, )
vs. N0.13,903
Gr.o. S. FlTZ(!Ki:.'.i,n, AppellantJ
This action ofclalni and delivery was for the
recovery of the pnesewion of certain horses
and colts and two mowers, or their value and
damages for their taking and detention.
The del', ndant ndjnit-s the taking of the
property as 11 Constable under a writ of execu
tion on a judgment Hsamst .Jeremiah Ryan,
the :;ssi-nee or the plaintiff. (Tr. fblki 22-3.)
The <•; use was tried bj i jury, who returned
this vemiet: "We, the jury in the above on
titled '•:,n-e, find tor the plaintiff the poaaee
si'.n oi i be following property: The borsuu and
eoi^'l, ■■. .in .i in tn eoMpl.-iint, or its \u!ue,
the sum of 81,225, with damages in the sum
Of»48 55." (Folio -JB.)
Upon that veriMcl v Judgment wai rendered
fir the pUiiutHf that be bavcand receive pos-
H«sion of tiie property mentioned in the ver
dict, specifying it, "oi-fur the Hum of $1,238.
the value thereof, In cose n delivery thcreul
I cannot bo had, and In <-a>" a (i. mm ry : anj
portion thereof cannot bo bod, then lor the
value of such portion of said property, tit
gether with $-18 55 namuges, and for co ts
(axed ai 930 5p. rt From thin Judgment an
appeal is taken oh the Judgment roll, and the
appellant claims a reversal thereof, because:
••'li. e rerdiel isunct-rtain in this: Jt does
not provide ftw a delivery of the property to
the plaintiff, if del I very can i«- had. andooei
not, nor does the judgment, stale tor what the
damages ore given. Tin complaint cluims
daniap« ft>r taking as well us tor detention.
1> unaues for detention only are permltti d.and
son r asuppears UiOTlamaircs may have been
awarded for the taking only." (Appellant 1*
P. and A., p. U.)
Ii was unnecessary tlmt the verdict should
hay provided for any delivery oftbeprop-
I erty, if such nmld be bad. When the Jury
i found the righl of possession to )>e ii! the
: plaintiff, then the conclusion of law followed
| us pr..\ Ided In Section t;r,7 erf the Code of Civil
I Procedure, thai be wu entitled to delivery. If
it i oald DQ had. and if not. to the value Of the
property as found in the jury In the alterna
tive; this the judgment must contain, but not
the verdict. Kor, as to the judgment, the
• form of It must i>e provided In the section of
the Code of Civil Procedure tupra, but Section
r,:_'7 <>f the same c6de, which prescribed what
the verdict of the jury simll contain, require*
iio finding a." to delivery a; all.
As to toe second matter of objection, that In
nil rence to the iinei rtainty of the verdict tor
damages, whether it N given tor taking or •!<
--\tentioa. It may be sold: That man action of
the kind in band, damages may be claimed
and recovered tor both t^Kintr and detention
(Anaga vs. Villaba, 24 I'a- Rep.,65f1.) \ : ,,!
the verdict being for a sum eertaln tor dam
age*, n-.it specifying which kind, will be ]>re
•s\iiiu-<l to cover both grounds alleged for
damage. Again, ttie ohioetion going to the
I form of the verdict .should havei,.,u taken in
the court below, ana it is too bite to urce it
here. (Campbell vs. Jones, 41 Cal Blfl)
Jt Is urged further that bocauss the Jury
found for the plaintiff f.,r the possession of a
| part ot the property only, and as to tho bkl
ance theh" verdict was silent, tlmt a Judgment
based thereon is void, as not :•< sponsive to the
tasne raised by the pleadings, thai is the rteht
■>i possession of the whoie of the property
Ooooadlßff ""«t if snch a verdict hnd bwn
rendered tor tlie defendant, that it would have
been insufficient t-« support the ludirment.
under the rule laid down in Miller vs Jcweti
(66 OoL 2 1.'.!. yet the dele.,dam here does not
' allege In bis answer that tho plaintiff 1 has th«
possession of .-my of the property, hut that an
I officer or the taw ha» it nndcrawrlt in this
ease ifol. 1 is). The nliiintiff has mily obtained
judgment tor a part of the property, and has
noright to jxwseFsion of the balance. There
IsnotnlnK to show but that the defendant is
.■ntitl.d thereto, and that it cannot be with
held from him. The verdict and lodgment
hen f«Mii!.' silent as to the balance oi thepron
eriy it must be held tlmt the plaintiff was de
nied any further relief than be has obtained
and he is precluded from any further Htil
(»Uo» with the defendant as to this balance
(Gray v^pougherty, 25 c..i. 277) !*t*
Bui In this case the defendant has nsp-ed for
a return of the property,andivdooi not«S
pear thai be ihcs given bond and sureti's JSo
have justitled. and In that ease it wo l.Vt re '
been the Sheriff's duty, under Section M.5
(. <;. P. to have delivered the property to the
i'lMiutiif, and it must be i>ivHuined tlu i b^nas
done so, Therofore, since the plaintiff has
determined by the verdict und Indgmentto
he entitled to fbls balance oi the property tha
judgment here should be bo modWeUaitare.
quire his return of it to tho defendant, and in
other resix.'ts the.judgmentshould beuilirmed
and we so advise. Kootk (<
We concur: tOOih, C.
J» Ei.cn en, C, C.
Hav.ne, C,
Tim ror-RT.
•inc.. win' Vr JlUiu"" !1 ■'"' modlfled in accord
ance with tho views above expressed ■mil nu
so moditied, thejudgmeni ta SgrmedL 1
[Filed .laiiuar.v.'o, 1891 1
OotS^^.^C^^^-^ 1
(;™ j^'oti^'1 W!lters & OW.Car^ A Otis,
ctI'(irk^ lvi" ltl WilUS ' °°le & Crnlg) llarris
DEPARTMENT TYVO.
George Millkh, Bespo&de&t "I
vs
The HISBUKD brTCH Com-^' 0- 14,017.
PAKY XT A 1.., ApiHllants.
J'ianitm 'was the owner of a tract of land
situated about one mile southerly^ from tho
Ban Bernardino range of mountami. i'art of
he truct was inahi^h state of euMYaSon.
' omlogoatof Bald mountains,and trending
towards plaintlil's land but not ivichhii i; "s
:i canyon called Boldridge C.— v' 1, The
natural waters of said canyon Would not Uow
v'";,.t c' 1, 1, 1! £riPlillt °«t '»» the lower hnds
vulnout rutting nnv particular clmn-iei tie
'"'i'ncvuf the Row beingtospretdwit ,\y^
the saWJower lands northotplalntiff^wSn?
become absorbed in t icsni) " wS«
Used in Millio&s of Homes— *a Years the Standard. >
deftndants, by means of three [Uffatcnt ditches, '
turned foreign water into said canyon, antt j
the etcnlnglmg water from sjiid ditches passed I
throogn said canyon, and by outtlnv a»cw J
channels, etc., flowed out and over plaintilc j
land, coveriuj,' part of it with wind and debris,
and thas doing him damage. All of the
ditches, however, were not owned jointly by
allot the defendants. Each ditch was owued
and operated by part only or the defendants
wlio liad no intercut i n the ot her ditches; and
there was no concert o( action—that is, no
common design—between the owners of one
ditch and tho owners of the other ditches.
'J'he action was brought to enjoiu all the de
fendants from continuing the wrong, and,
also to recover dajr.nse* jointly against all the
defendants for the injury already done. Tim
court gave judgment decreeing an Injunction,
and also adjudging damages ogainstaU the de
fendants, jointly, for »!i7:; 83. Defendants
appeal frora the judgment and from an order
donylnganew trial; and the only.point they
make i* that the joint judgment tbrdamagea
\.i erroneous, because tiierc was uo concurrent
or joint act or negligcnoe on the. part of de
fendants which en vised the damage.
It is clear that the rulo as established by the
general authorities is that an action at law lor
damages cannot be maintained against several
defendants jointly when each acted independ
ently of the others, and there was no concert,
or unity of design, between them. It i» held
that in such a case the tort of each defendant
was several when committed: and that it does
not become joint because afterwards Kb con
sequences united with the consequences of
several other torts committed by other per
sons. If it were otherwise, say the authorities.
one defendant, however little he might hava
contributed to the Injury, would be liabtotor
ail the damage cuuseu by the wrongful acts of
all tiie other defendants; and he would have
11 - n medy against the latter, because no con
tribuli..ireaii be enforced between tort-feosors.
(Cbipman vs. Palmer, Z7 N. V. 61; Little
Schuylkill Nay. Co. vs. Richards. Adr., r>7'
li nn. St.. is:.:; BelMck vs. Hall, 17 Conn. 260;
Gould on Waters, See. -.v.f.i; I'omeroy on Rem
edies, Seel ions 8O7.3O8.) The case >":' Blaisdcll
vs. Stephens <it al. (11 Nov. 17) is very similar
to the case at bar,and involved the very point
under discussion. In that rase several defend
ant)! were sued "for wrongfully flowing waste
water from their iands to the injury of ploin
t ill's ditch, and tor an injunction to restrain
such wrongful flowing of waste water." It ap
peared, ho\ye\er, that the defendants "own,
occupy and Irrigate separate and distinci
tracis or parcels of land each In his own nt-hl;"
and they moved tor a nonsuit, upon !ho
ground thai it did not appear that tho Injury
complained of "was the result o! the joint or
conoorrent ad of d: lemtanls.'' The ti nil
court overruled the motion, ami. on appeal,
the Stipre:iic Court of JNevaoil belli that the
nonsuit should have been granted,and said
iv its opinion : "Tlie general principle is well
seii ied that where two or more parlies act,
each for himself, In producing a result injuri
ous to plain lift, they cannot, be held jointly
liable for the acts of each other." On rehear-1
lug, however, it was held Lbat theinjunctlr a I
aguinvt defendants was proper; but the jr.(^- I
■vent, so far us it awarded damages, was r».
\ erss d. v
'Die principal has not been changed in this
State, ojtber by statute or judicial Ceclslon.
Tiie latest authority 0:1 the point here i;; Tem
ple vh. (..old Run 1). and H. Co. (66 OU. ] :i;<>.
That wan a case where it was sought, by the
equitable remedy of injunction, to restrain the
commission of a-.-t,-; similar to those com
plained of In the case at bar: and the appellant
sought to invoke, as against the injnnctiou,
tin- principal above slated as applicable to ac
tions at law for damages. This court add,
however, that the rule did not apply to tin;
equitable remedy; but It expressly .stutod that
it. would apply to an action for damages.
Counsel for appellant, in support of their po
sition, had cited a number of eases; and in al
luding to them this court said as follows:
"Knch of those cases was decided upon tin:
principle thai where several persons acting
Independently of each other, engage In the
commission of wrongful acts, the tort* are din
tine! and not joint; and each is only severally
liable C>r the Injury caused by his own setr I
and not for the torts of others with whom nj
was no! acting in concert. There enn ix n,,
doubt of tin correctness of that prtnclpV and
or its applicability to an action at law .iii- the
recovery of damages for the vioht&ton of a
private right." It may be contended '.nn; the
earlier case of Ilillinan vs. Newi!.pton 107
cnl. 56) cetablUhed a differentdocttiue; but it
ttiusl bo 11 ueuiberedtuat the main porposG of
thai action was to proenreand mu'ntiiiu an iu
j unction. Thu judgment awarded only nomi
nal damages—Sl. Before that time there liad
b 1 Mime doubt whether several wrongdoers
acting Independently, could be Joined in an i
e.jiiitaMe proceeding to procure-an injunction
ujiiUns' all: iind, indeed, it bad ix-cn once held
In this sti;t>' (Keys vs. Little York (;. and \V\
Cto^ 63 Gal. 724) that it could not be dome!
The language of the Court in Uilinian v-"
Ncwlnston must, therefore, bo considered as
referring eKpeciall] to the right of cqultabie
1. mi ...>. Th< re was practically no question of
damages before the court; and no question
was raised as to the distinction between the
equitable and the legal remedy, Tbscaae Is
r !• rred to In Hie opinion of the Court In the
lal ar case of the People vs. The Gold Kun Co
above mentioned, where Kiiiir.un vs. Newingi
ton is evidently considered a* settling only jius
equitabh remedy. (And, of course, tho dis
tinction Is very plain between holding one <*r>.
fendant liable for the past WTOngSOfaU the
others, and simply enjoining all from com
iinmui,' wrong in the future.) We think
th« refore, timt under the law as dear) v settled'
the johit judgment against thy; def< niiants for
damages is erroneous.
We have considertd this oßse somewhat at
length, because it is contended that tiie rule
as above stated will in some instances work a
hardship to owners of property injured ny the
Joint consequences of acts of several persons
no) acting in concert. Ko doubt there may be
cases where it would be dlltieult to make suffi
cient proof against one of such persons if
sued separately. Hut tt cannot i«? made clear
that the opposite rule Would work less WTOne
A: all events, we must declare the law as wv
find it. If the law were changed so that inn
ease Hkethe one at bar asevenU judgment
could be given against each defendant tor the
proportionate part of the joint damage which
his Individual acts had caused, it. may be that
such change would be in furtherance of justice
Bui the suggestion e,r such change could bo
properly made only to the law nmkinn power
The judgment appealed from, so far at It
awards damages agatnst defendants la* re
versed, and in all other respects the jii'ijrrieiit
is affirmed. Let api>ellaut recover tlw c?»«ts of
this appeal.
or.ier overruling niotiou for new trail
>\ c concur:
THOBJfTOH, J.
SiiAurriTi::N, J.
[Fik-d .Tunuary S. 1890.1
Appeal from the t&upertor court of the
County of Fresno-M. K. Harris. Jud^e.
Ig r appellant, Jarbot, Harrison S Good-
For respondent, Thomson & Thompson.
DKPAKnmn two.
O. L. Abbott, I?csix>ndent, i
vs I
The 76 Land & Watek Co., f No- 13.950.
Appellant, j
T!ie option in plainU.Tto buy the land under
the lease or cropping contract entered into by
the plaintiii and defendant, bearing date 7th
• ■ay ol Ijceember. 1885, continued for two
years from tlie Ist day of October. l^sG. It
makes no di lien nee that it was not inserted
in the second lease, it was left out of )he
second lease by agreement, as something vi*.
necessary.
The defendant had a risht toehansrethc pur
chaseprice during tin; execution oi the (ease,
provided it did so prior to the Ist of October
of each your. It never did change this price.
It therefore remained as in the lirst contract.
Ttie plaintitr exercised and gave notice Of
his intention to purchase under the option
clause above mentioned, on tho 3d of Septem
ber, 1887, and then otlered to pay the instal
ment of the purchase money then due, viz |
Goe-tourth of it. and interest on tlie portion
not then due. and offered to comply In all
respects with his contract. The defendant re
fused to receive the money and repudiated its
contracts With the plaintiff".
we t^'iiiktl'nt the Judgment iscorrcctnnd in
acoorumico with th^ principles of law and
should be affirmed.
The statements of the Secretary of the de
fendant corporation, made to '/laintili; were
properly admitted. It isevideiA taut the con
duct of the whole business A'a.s loft by the
company to him; that he wag lully authorized
to act, and did act for th/ company in its
dealins; with plaintiff and others in the liku
situation In regard to the business connected
with the leasing nnd disposition of it« lands.
The determination of this action by tho Court
below is in accordance Tyith well settled legal
principles. Tho record, shows no error.
Judsincnt atKrmed. TiiountoS', J.
We <x>ncur:
bh4bpsteih, j.
McFaiilasiv 3,
In Demand.
IFolsoiP Telegraph, Jan. lOth.l
The Sac-rainonto Rkcoiid-Uniox ap
peared in a handsome new dress of lijjht
faced typo yesterday morning. It was
prhiteti 011 its now pres3, and is one of
tlu» lieatest pieces of newspaper typoo;
vwpliy we ever saw. For some reason or
other only two copies reached town yes
terday, uud there was a big demand
for it.
THE GKZ;jOIT
Annual Clearance Sale.
ONLY TWO DAYS MORE.
CLOAK DEPARTMENT,
We have decided to make a final sacri
fice to close out the stock of Cloaks. For
this purpose we have re-ticketed the entire
lot, and marked in prices they will be sold at
This includes everything old and new.
Now is the time for those that have been
waiting for the final cut.
note; these; prices;
Sealette Jackets, vest front $10 00
Sealette Three-fourth Sacques 15 00
Sealette Newmarket 27 50
Sealette Wraps, small sizes 15 OO
Fine Cloth Jackets 4 00
CLOTH NEWMARKETS HAVE TO SUFFER A
CLEAN LOSS OF ONE-HALF THE COST.
Is this what you have been waiting for, close buyers?/
======1 \
THE NONPAREIL,
Corner Fifth and J Streets,
SACRAMENTO, - - CALIFORNIA.
tTOS. THIEBEN CP^OCPCEPS-lir CO.
Special Sale for 10 Days.
A reduction of 15 per cent on anything in our store outside of the
regular staple goods, such as White China, Plain Crockery or Plain
Glassware, on account of making room for our spring stock, and to
save expense and trouble of taking inventory. As ALL GOODS ARE
MARKED IX PLAIN FIGURES you can buy for yourself.
JOS. THIEBEN CROCKERY CO.,
NO. 518 J STREET.
86?* We are the recognized headquarters for BAR,
HOTEL and RESTAURANT SUPPLIES.
Baker & Hamilton,
—IMPOKTKRS AND JOIU'.r.KS OF—
HARDWARE, IRON, STEEL,
COAL, POWDER,
Agricultural Implements and Machines,
BARBED WIRE, CORDAGE, BELTIXG.
SACRAMENTO CALIFORNIA.
SHERWOOD HALL NURSERIES
Timothy Hopkins,
MENLO PARK, SAN MATEO COUNTY, CAL.
Carnations, Roses, Chrysanthemums
and Cut Flowers.
*S- SWEET PEA SEED A SPECXALTY.-g»
S. CARLE,
SUCCESSOR TO CAIU.E & CROLY, CON
tractnrauil liuiiiter. Ordors solicited and
promptness guaranteed. Office and shop,
1 184 Second St., between X and L.
H. S. CROCKER &C(K
208 AND aio J STREET,
The Leading Stationers,
PRINTERS AND LITHOGRAPHERS.
AGENTS FOR CALIGRAPH TYPE
WRITER AND SUPPLIES.
MANUFACTURERS OPBWNK BOOKS
nlj'^tl
t. A. LAUDER,
Importer and Denier in
Buggies, Carriages, Carts, Harness,
Whips and Robes.
OS" X STREET SACItAMEyTTO.
REMOVAL.
mHE UNION ICE COMPANY HAVE RE-
J_ moved to tUcir new and spacious quarters,
BSI and 628 I ptreets, between Firth and
.Sixth. All kinds or COAL constantly on baud.
_dlo-lm CIIA.S. SKLLIXGEH, Manager.
A. MEISTER~
CARRIAGES. VICTORIAS, PILVETONS
Baggies and Spring Wagons.
0"0, Olg, 014 Ninth st., Sacramento.
GUTHRfE BROS.,
"PRACTICAL PLUMBERS, STEAM AND
_L Oas Fitters. Roollng and Jobbing. Terms
reasonable. 127 J Streoi. ™
state;
CITRUS FAIR
—FOR—
Northern California
-WILL EE HEIJ) AT
MARYSVILLE,
January 12 to 17,1891. '
Casli Premiums, Se.^oo,
SPECIAL EXCURSION
Leaves Southern Pacific Depot,
Sacramento, SATURDAY, Jan
uary 17th, at 1O:33 A. M., by
way of Davisville, "Woodland
and Knight's Landing, ova#
new road through Sutter coun
ty. Returning SATURDAY
EVENING, leaves Marysvillo
at 9 o'clock.
Fare, round trip, $z 5a
B®° Tickets for sale at Rail
road Ticket Office. jtus-io*
