23 Cal. 339, Verzan v. McGregor

Citation:23 Cal. 339
Opinion Judge:CROCKER, Judge
Party Name:VERZAN v. McGREGOR et al.
Attorney:H. O. Beatty, for Appellant. S. Rosenbaum, for Respondents.
Judge Panel:JUDGES: Crocker, J. delivered the opinion of the Court. Norton, J. concurring.
Case Date:October 01, 1863
Court:Supreme Court of California
 
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Page 339

23 Cal. 339

VERZAN

v.

McGREGOR et al.

Supreme Court of California

October, 1863

Appeal from the District Court, Fifteenth Judicial District, Butte County.

COUNSEL:

H. O. Beatty, for Appellant.

That the Court was the proper tribunal to determine the admissibility of the memorandum, I refer to the following authority: (1 Greenl. on Ev. Sec. 49.) In equity, time is seldom of the essence of a contract; in law, it generally is, unless waived. It is true, Courts always, to prevent injustice, seize on slight circumstances to determine that time is waived. And to prevent a party from sustaining a total loss--where he only fails in time--the Courts always allow an action in assumpsit (not on the contract) in the quantum meruit, or some other of the common counts, where the defendant has accepted the work, service, material, or other thing from the plaintiff, whereby he has actually been benefited; but then plaintiff can avail himself of no special provision of a written contract. (2 Parsons on Cont. 172.)

S. Rosenbaum, for Respondents.

JUDGES: Crocker, J. delivered the opinion of the Court. Norton, J. concurring.

OPINION

CROCKER, Judge

Page 340

This is an action to recover the possession of a ditch or canal used to convey water for mining purposes. The ditch was originally owned by the " Table Mountain Ditch Co.," and had been sold under a judgment and execution against the company, and purchased by one Rhodes, and by him conveyed to the plaintiff. The sale to Rhodes was made on the sixteenth day of April, 1860. On the twenty-ninth day of May, 1859, the defendants entered into contract with the company, by which they agreed to finish, widen, deepen, and repair the ditch; dig a tunnel, and erect several flumes connected with the ditch; and agreed to finish the work in November, 1859. The defendants are in possession of the property under this contract; claiming the right to retain the possession until they are paid for the labor done on the work. This claim of the defendants is founded upon the following writing, which is written under the contract, just below the signatures of the parties, but is not signed by either of them, independent of the signatures to the contract itself, which precede it. It is as follows: " The

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Table Mountain Ditch Co. agree to give to the parties of the first part, the right of way for digging the ditch. And the parties of the second part, agreeing to give the parties of the first part the ditch as security till the whole is paid. Also agreeing to build two sufficient reservoirs to hold water from said ditch; one at the end of the long flume, also one on Table Mountain. Failing to build such reservoirs, to pay interest on all money due the parties of the first part."

One important question in the case is, whether or not this memorandum forms any part of the contract between the parties. On this point Nesbit and Saucier, the subscribing witnesses, whose names are subscribed to the main contract above the memorandum, were examined before the Court. Nesbit testified that he was present when the contract was signed, and was called to witness it. Several hours were spent in discussing it. Defendants wished security for their pay. Tyre (who acted for the company) said he was willing to give security for their pay, if the defendants would give security for finishing their work; and it was agreed that the defendants should give security for the performance of their contract to the amount of five hundred dollars. Tyre then wrote the memorandum as security for the payment on the contract, and the defendants left to get security before the memorandum was signed; that when he signed as a subscribing witness, McGregor was on one side of him and Tyre on the other. Witness asked why the memorandum was not signed. Tyre replied that the memorandum had nothing to do with the contract; and McGregor was standing by his side at the...

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