Page images

any other form of action in which such breach of duty is alleged as a ground for damages or for relief; and, while his return may be received as evidence in his favor, the plaiutiff is at liberty to controvert it, if he can." See, also, to the same effect, Whithead v. Keyes, 3 Allen, 495; Barrett v. Copeland, 18 Vt. 67. This is an action against the defendant for a breach .of official duty, and his official return, showing the manner in which he performed his duty in the matter complained of, is only prima facie evidence in his favor; and, as the truth of the retuon is the real question in issue in an action like this, only slight evidence aliunde is required to overcome the prima facie effect which the law attaches to the return of the officer; and when, as in this case, it is not disputed that the defendant sheriff has himself admitted the falsity of the return, a finding that its recitals are true, based upon no other evidence than the return itself, cannot be sustained. The defendant was called upon, in order to re but the testimony of plaintiff concerning these admissions, to offer some evidence. either in explanation or denial of the admissions, or some independent proof that the notices were posted in the manner stated in the return. Judgment and order reversed.


1. The court did not ert in denying the motion of plaintiff for judgment upon the pleadings. The apswer was not evasive, as claimed by plaiutiff, it being very evident that the word “when,” used in one of the denials relating to the posting of the notices, is a clerical error, the context showing that "where" was the word intended; and with this correction the extremely technical objection to the sufficiency of the answer loses all of its force.

2. The point most strongly urged by the plaintiff for a reversal of the judgment is the insufficiency of the evidence to justify the finding of the court to the effect that notices of sale were duly posted in the township where the property is situated, and in the township where it was sold, for the length of time required by law. The only evidence offered by plaintiff, for the purpose of showing that such notices were not posted, consisted of the testimony of himself and another witness as to verbal admissions made to them by defendant, to the effect that he knew that the notices were not posted, and also the testimony of one Merryfield, to whom defendant sent notices of the sale for posting in the township where the property sold is situated. This witness testified that he thought he received the notices for posting on January 27, 1890, only 13 days before the sale; but he was not questioned in relation to the grounds of his belief, and he testified to no circumstance enabling him to retain any fixed or definite recollection of the exact date when he received the notices, nor did he profess to be certain as to such date. This testimony was given about 17 months after the event, and relating, iis it did, to a matter and date which the witness was not shown to have any particular reason to recollect with entire accuracy, was entitled to but little weight in passing upon the question when the notices were posted. The court below evidently did not regard it as satisfactory, and we need not further consider it. The only evidence offered by defendant was the writ of execution and his official return thereon, which upon its face showed a sale of plaintiff's property after notice given in the manner and for the length of time required by section 692 of the Code of Civil Procedure. The precise question thus presented is as to the effect of this return as evidence, and whether the court was justified in finding the facts to be as stated in this return, in the face of the evidence of plaintiff in relation to the contrary admissions made by defendant.

In an action against a sheriff for a false return, the return is prima facie evidence in favor of the sheriff. 2 Freem. Ex'ns, $ 366. In the section just cited, Mr. Freeman says: “The better rule is that an action for a false return is not the exclusive remedy when an officer bas been guilty of a breach of duty. He may be proceeded against in

AUSTIN V. DICK. (No. 18,184.) (Supreme Court of California. Oct. 30, 1893.) ELECTIONS AND VOTERS-CONTEST—WHEN AU

THORIZED. Code Civil Proc. $ 1111, providing that any elector of a county, or political subdivision thereof, may contest the right of any person “declared elected” to an office to be exercised therein, for causes enumerated, only authorizes an examination of the right of a person “declared elected" at an election, the canvass of which is questioned, and does not authorize a recanvass of votes where the election has been declared to have resulted in the election of no one, in which case a new election must be held.

Commissioners' decision. Department 2. Appeal from superior court, Modoc county; C. L. Chaflin, Judge.

Action by J. T. Austin against Morris Dick to contest defendant's right to an office for which contestant and contestee were candidates. A judgment refusing to declare contestant elected was rendered, and, to obtain a modification of the judgment, he appeals. Modification denied.

D. W. Jenks and G. F. Harris, for appellant. Goodwin & Stewart, Goodwin & Goodwin, J. W. Harrington, and H. L. Spargur, for respondent

TEMPLE, C. This is an appeal taken to obtain a modification of a judgment in an election contest. It appears from the complaint that at the general election, November


8, 1892, plaintiff and defendant were candi the election has been declared to have re dates, and the only persons voted for, for the sulted in the election of no one. In such office of supervisor of the third supervisorial case a new election must be called, although district in the county of Modoc, and that at it may be that a candidate may question the such election plaintiff received 87 and defend- | correctness of the canvass in a different ant 85 votes; that the votes were canvassed proceeding. Dick was elected at the special November 14, 1892, but the board refused to election called after it was determined that declare plaintiff elected, and afterwards, on there had been no election at the general the 8th of December of the same year, de election. No fault is found with that elecclared the defendant elected. The complaint tion in the complaint. It is, in fact, wbolly then proceeds to set out certain alleged irreg- ignored. Perhaps it may be now claimed ularities at the election, and, among them, that the special election was illegal because that the board of judges at a certain precinct | there was then no vacancy. But this is a failed to count for plaintiff one vote which question which cannot be tried in this prohad been cast for him, and that the alleged | ceeding. There is hardly a section in the misconduct and irregularity "procured said title in regard to this contest which does Morris Dick to be declared elected to said

not show that the inquiry is limited to an office of supervisor, when he had not received examination of the right of the person de the highest number of legal votes therefor." clared elected at the election, the canvass of The answer denies that said defendant, Mor which is questioned. The finding, there ris Dick, was, or has ever been, declared | fore, that no one had been declared elected, elected at said election, but avers that the

was a finding to the effect that the court board of canvassers declared the result of

had no jurisdiction of the matter. This the canvass of said election as follows: "It present appeal does not affect the rights of further appearing from the canvass of said said Morris Dick, who, it seems, has also returns that no person has received the high- taken

appeal. The relief demanded est number of votes for the office of super- should be denied. visor of the third supervisor district, but that it does appear that, of the persons receiving We concur: BELCHER, O.; VANCLIEF, the highest number of votes, J. T. Austin and O. Morris Dick each received the same number, and that no person has received a higher

PER CURIAM. For the reasons given in number of votes cast for that office, it is or

the foregoing opinion, the relief demanded dered that a special election be held in said

is denied, and the judgment affirmed. supervisor district number 3 on the first day of December, 1892, for the purpose of electing one supervisor for said district, and that SAN DIEGO WATER CO. v. SAN DIEGO an election proclamation be issued and pub

FLUME CO. (No. 19,196.) lished, calling such special election." The

(Supreme Court of California. Oct. 10, 1993) court found this allegation in the answer to

WATER COMPANIES–CONTRACTS – RIGHTS OF PARbe true, and yet proceeded to find that at

TIES_ACCOUNTING. such election one vote was wrongly counted 1. Plaintiff and defendant, two water comfor Dick, which, if deducted from the votes panies,—the latter owning a water supply concounted for him, “will reduce the number of

ducted to the limits of a city; the former og his legal votes below the number of legal ing a system of pipes for conducting it through

the city,-made a contract by which deferdvotes given to said contestant, J. T. Austin."

ant's water was to be distributed through plain The court, however, refused, by Its judg- tiff's pipes; the proceeds, after deducting oper ment, to declare contestant elected, and this ating expenses, including necessary extensions

of the pipes, to be divided between them; the appe:l is taken to obtain a modification and

question of what were necessary operating excorrection of the judgment in that respect.

penses to be determined by the presidents of Put the finding that no one was declared the companies, who were to be trustees of the elected is upon a matter of jurisdiction. The properties. Held that, under this contract, proceeding is entirely statutory, and is to ob

plaintiff had no right to lease its property, and

sell to the lessee a certain amount of defendtain a recanvass of the votes cast at an elec

ant's water for a gross sum, with provision tion in which some person was declared elect that, if extensions of plaintiff's pipes were Dee ed, and the contest is simply over the right essary, the lessee could require plaintiff to pit

them in,-plaintiff to be allowed for the amount of the person “declared elected.” Section

80 expended 6 per cent. interest, and 3 per 1111, Code Civil Proc. It is not, and can

cent. per annum on the cost for deterioration not be made, a proceeding to determine the of the extension,-and, plaintiff insisting on its right of claimants to an office where one

rights under this lease, defendant could refuse

to furnish water. claims a right not depending upon that elec

2. Plaintiff, having brought an action to tion, and the statute has not authorized the

enjoin defendant from shutting off the water, recanvass of the votes in the case, where and for a determination of its rights as to i

division of the money received under the leave.

-proceeding on the theory of the validity of Code Civil Proc. $ 1111, provides that any the lease,-is not entitled to have the artion re elector of a county, or political subdivision

tained for an accounting based on the lease. thereof, may contest the right of any person "declared elorted” to an office to be exercised

In bank. Appeal from superior court, San therein, for causes enumerated.

Diego county; E. S. Torrance, Judge

[ocr errors]

Action by the San Diego Water Company the approval of the respondent, and that no
against the San Diego Flume Company. sales should be made without the consent of
Judgment for defendant. Plaintiff appeals. the latter. Exhibit B is quite a long con-

tract, and its principal features are these:

The parties appoint one Babcock and one Works & Works, for appellant. Hunsa Sefton. the former being president of the ker, Britt & Goodrich and Shaw & Holland,

appellant, and the latter of respondent, as for respondent

trustees, to whom they, in terms, "assigu

and give the absolute control of their reMCFARLAND, J. This action was brought | spective properties, as far as the same may by plaintiff to enjoin the defendant from be confined to the corporate limits of the shutting off, or preventing the flow of wa city of San Diego." Said trustees were to ter into, certain mains and pipes of plain- hold in trust, and “operate and control, said tiff. The court granted a nonsuit, and en respective properties, for the benefit and use tered judgment for defendant, from which of the respective parties of the first and secjudgment, and from an order denying a mo ond part, in the manner as herein mentiontion for a new trial, plaintiff appeals.

ed." It was stated that the parties were Each of the parties is a corporation organ "to combine their joint endeavors for the adized under the general laws of the state, for vancement of their respective interests unthe purpose of distributing, selling, and fur der this trust, subject to the conditions as nishing water to consumers in the county hereinafter mentioned." It was further pro and city of San Diego. The contracts and vided that appellant should furnish “its enthe relations of the parties out of which this tire plant, and any extension of the same. litigation came are somewhat complicated. for the free use and occupation as the said The main facts are as follows:

trustees may determine for the uses and purIn September, 1890, the respondent, the poses of this contract.".. The respondent flume company, was the owner of a supply agreed “to deliver, at a point in their flume of water which it brought from a long dis or pipe line where the same does now or tance, by means of ditches, flumes, and pipes, may hereafter intersect the present or future to the boundary of the city of San Diego, limits of the city of San Diego, a water supor, as counsel put it, “to the gates of the ply, of a good quality, for domestic purposes, city;" but it had no pipes or other means,

sufficient for the uses of the city of San within said city, by which it could distribute Diego." It was further agreed that, after water to the inhabitants thereof. The ap deducting the operating expenses of the pellant, the water company, owned a system plants within the city, the proceeds of the or plant of pipes by which it could distribute sales of water should be divided between the water through the greater part of the city, parties in the proportion of 65-100 to the apwhich it had been using to partially supply pellant, and 35-100 to the respondent, and the city with water pumped from sources in it was provided that "operating expenses” the immediate vicinity. The respondent was should include necessary extensions of said negotiating with the city to sell or lease wa plants; but it was also further provided that ter to the latter, and an election had been the said trustees should determine what were called for the 14th of October, at which the necessary and proper operating expenses. It electors of the city were to vote on the prop was further provided that “this contract osition of issuing bonds for that purpose.

shall extend and be binding upon the parThe respondent was endeavoring to carry ties hereto, their successors and assigns, for the election in favor of the bonds, and the the term of twenty years, beginning on the appellant was opposing that proposition. In 6th day of November, 1890.” There were the latter part of September, the appellant other provisions in the said Exhibit B, which and respondent agreed upon the proposition

we do not deem necessary to be here mento unite their interests, and a memorandum tioned. The parties commenced operating of such agreement was made in writing, but under this agreement of November 9th, and was not fully executed. After that the re continued to so operate until about the 1st spondent ceased advocating the proposition of June, 1891. of issuing the bonds. On November 6, 1890, On the 13th day of April, 1891, the appelthe appellant and respondent executed a laut entered into a written contract with written agreement, which consisted of two Bryant Howard and several other persons, parts, called in the pleadings “Exhibit A” called "Exhibit 1," by which the appellant, in and “Exhibit B,” these two instruments be its own name, leased to said Howard and ing intended as one agreement. By Exhibit others, for the term of 20 years from and A the respondent appointed the appellant after the 1st day of June, 1891, all their “its sole agent for the exclusive sale of wa water plant within said city, including all ter within the corporate limits of the city pipes, pipe lines, etcp, and also sold and of San Diego, California;" the appointment conveyed to said Howard and others 3,000,to continue during the continuance of the 000 gallons of water “from what is now other part of the contract called "Exhibit knowu as the 'San Diego Flume,'" for each B." It was provided, however, that all sales and every 24 hours during said period of 20 made by the appellant should be subject to years. (The said "water from what is now

[ocr errors]


known as the 'San Diego Flume,'


tially the same as the one made between ap the said water supply of respondent, as pellant and Howard and others. By it above referred to.) By said contract, How Howard and others leased and sublet to the ard and others agreed to pay to appellant, city, for the period of 20 years from and during said period, the sum of $9,165.65 per after June 1, 1891, all the said plant or sysmonth, and the appellant agreed to accept tem of water pipes owned by appellant in in payment thereof the obligation of the said city, and 3,000,000 gallons of water city of San Diego to pay and satisfy the every 24 hours from the San Diego fiume, same. It was further agreed that after the and provided that the city should pay appelconstruction of a certain railroad, afterwards lant for the same, as rental, $9,165.65 per in said contract mentioned, Howard and month, which amounted to about $110,000 & uthers should have the right to assign the year. It provided, also, for the 6 per cent. whole lease to the city of San Diego, and and 3 per cent. mentioned in said former that the appellant would look solely to said contract, and provided, further, that, if the city for the carrying out of the agreement city desired more than 3,000,000 gallons per on the part of Howard and others. It was day, plaintiff should furnish the desired then stipulated that the lease was made amount at the rate of 5 cents per 1.0%) upon the condition that the appellant should gallons. It also provided that the city should cause a railroad to be constructed and operat determine the amount of extensions to be ed from the city of San Diego, Cal., to San made to said system of pipes. There were Quintin, in the republic of Mexico, or to Fort other provisions, which we do not deem it Yuma, Cal., or its immediate vicinity, al necessary to here notice. though it was also stated that “this provision There was some evidence tending to show shall not be construed as obligating the party that some of the directors and stockholders of the first part to construct said road;" it of the respondent had knowledge that the being sufficient, under the contract, if the contract between Howard and others agd road should be built by some railroad com appellant was to be made, and also that pany. It was further agreed that, should Howard and others were to make the said any extensions of the pipe lines or plant of contract with the city, and did not object appellant in said city be necessary, Howard thereto, but rather encouraged the thing. and others, or their assigns or sublessees, There is no evidence, however, tending to should have the option to put in such ex show that the board of directors of the re tensions, or they could require appellant to spondent, at any of its meetings, ever apmake such extensions, in which case the approved either of said contracts, or authorized pellant should be allowed for the amount any of its officers to take any action with expended in such extensions the sum of 6 respect to them. On the other hand, after per cent. per annum interest. It was also the execution of said contract with the city, stipulated that, "for the deterioration of the appellant requested the directors of the re extensions of the pipe lines." Howard and spondent to approve said contract, which others should pay to appellant 3 per cent. the latter refused to do; and on the 19th per annum on the cost of such extensions; of July, 1891, the directors of respondent also, that Howard and others should have passed a resolution, which, after reciting the a right to terminate the lease in case any of various contracts, expressly repudiated the the conditions, stipulations, or agreements contracts made by appellant to Howard and therein mentioned should not be complied others, and the contract between Howard with by appellant. The contract, also, had a and others and the city. And between the general provision that Howard and others 1st of June, 1891, and the date of said might sublease to the city of San Diego. The resolution, the respondent did not receive contract last above referred to was made any money from the appellant. After that, with the express understanding between the respondent continued to furnish water, as parties that Howard & Co. were to sublease before, until the 2d of May, 1892, claiming, to the city of San Diego, or to make a con however, to be acting under the original contract with said city by which Howard & Co. tract of November 6, 1890; but there were were to transfer to the city all the rights continuous difficulties, disagreements, and which they obtained under said contract troubles between the appellant and the re with appellant; and in pursuance of said spondent, and on the said May 2, 1892, re understanding, five days afterwards, to wit, pondent disconnected its water with the on April 18, 1891, said Howard and others mains of the appellant, and refused to fur: and said city did enter into a contract called nish any more, whereupon appellant brougbt “Exhibit 2.” This contract referred to the this action to enjoin the respondent from said contract of April 13th, and provided thus shutting off the flow of water into the that “this agreement is made upon the ex mains and pipes of appellant. press condition that in case the contract Upon the foregoing facts, counsel discussed above referred to shall be terminated under a number of important questions, whicn, any of the conditions, stipulations, or agree under our view, need not be here determents in said contract contained, then and mined; but, in order to fully present the in that case this contract shall at once ceuse crise, we will notice a few of such questions. and determine." This contract was substan. Respondent contends, among other tbings.

[ocr errors]

that the original agreement of November 6, thing contained in the contract of 1890. 1890, was void because it was against pub- And, as the appellant insisted upon its rights lic policy, in that its purpose was to pre

under the said contract with the city, the vent the city from acquiring its own water respondent had the right to stop furnishing supply, and to obtain a monopoly of the' its water; and appellant has no legal rembusiness of furnishing water to the city for edy by injunction to compel respondent to 20 years; because it undertook to take away continue its supply of water, as provided for from the directors of respondent all power in the contract of November, 1890. And we over its business for 20 years, and to vest do not think that the evidence shows any such power in two persons, one of whom was valid ratification of said latter contracts by not even a member of the corporation re respondent. spondent; because it undertook to form a Appellant contends that, even if it be not partnership between the two corporations, entitled to an injunction, a nonsuit should and to consolidate said two corporations, not have been granted, but that the court which is not authorized, except in cases of

should have gone on, and taken an accountrailroad and mining corporations; and be ing between the parties. The prayer of the cause the said contract was in other re complaint, in addition to asking an injunction, spects ultra vires, in the broadest sense. prays, also, for judgment against the reRespondent also contends that the contract spondent for $10,000 damages, and also “that between appellant and Howard and others the rights of plaintiff and the defendant as was void in many respects, and particularly to the division of the money realized from because it was made in contemplation of the

the amount received from the city under city of San Diego taking the place of How

said sublease be ascertained and deterard and others, and that the contract be

mined.” But, certainly, appellant showed tween Howard & Co. and the city was void

no case for damages against the respondent; for many reasons, and particularly because, and, as the complaint proceeds upon the under the constitution of the state, it was

theory of the validity of the sublease to the the duty of the city to fix the rates of water city, we do not think that plaintiff is entifurnished by appellant annually, and that tled to any accounting based upon he conthe city had no right, by one act, to fix the

tract with the city. If it be true, as conrate of water for 20 years; also, because

tended by appellant, that some of the memthe city council could not grant a subsidy.

bers of the corporation respondent encourAll these propositions are contested by ap

aged the contracts with Howard and others pellant. Some of the foregoing propositions

and with the city, appellant may have some are of very great importance, and their un

cause to complain of a want of fair dealing; necessary determination here might furnish

but, when corporate bodies are contracting precedents which would foreclose or em

with each other, they should keep in remembarrass the rights of future litigants without

brance the old saying of Lord Coke, that a hearing. We will not, therefore, determine

corporations have no souls. The judgment those questions, because we think that the

and order denying a new trial are ed. judgment should be affirmed for another

We reason.

concur: HARRISON, J.; PATERAssuming that the contract of November

SON, J.; FITZGERALD, J. 6, 1890, is a valid one, still we think that the rights of the respondent must be determined upon that contract alone. That contract did not give to the appellant the right

BANFIELD v. BANFIELD. to make the contract with Howard and oth

(Supreme Court of Oregon. Nov. 13, 1893.) ers; and certainly the contract between How

REFORMATION OF NOTE. ard and others and the city of San Diego is one which cannot bind respondent in any

Plaintiff purchased from defendant a

bond for a deed of land, and at the time of the way, and the two last-named contracts are sale defendant, who had the bond in his posessentially different from the one of Novem session, stated that there was $600, "may be a ber, 1890. And one essential difference,

little more or a little less," due thereon, supwhich is important and substantial, so far

posing such to be the case, but without pre

tending to have actual knowledge on the subas the rights of respondent are concerned, is ject. For several weeks prior to executing the that the latter contract gives to the city of pote in payment therefor, plaintiff had the San Diego the right to determine what ex

bond in his possession, but made no attempt

to ascertain the actual amount due thereon, tensions should be made to appellant's sys

though he had the data necessary to the caltem of pipes, -what the operating expenses culation. Held, that he was not entitled to a shall be-while the contract of November, reformation of the note, though the amount 1890, vests that power entirely in the two

due on the bond was $300 more than the

amount stated by defendant. trustees named therein; and the result of the said provision of the later contracts was Appeal from circuit court, Multnomah counone of the principal causes of difference be ty; L. B. Stearns, Judge. tween the two parties. Moreover, the 6 Action by M. C. Banfield against Jacob per cent. and 3 per cent items in the later Banfield. There was judgment for defend. contracts were essentially different from any. ant, and plaintiff appeals. Affirmed.

« PreviousContinue »