The circuit court affirmed the judgment, and further ordered and adjudged that the defendants have and recover judgment of the plaintiffs for their costs herein, taxed at $ —, and the costs of the lower

court, taxed at $81.30, for which execution may issue.

The first error assigned is that the judgment of the justice of the peace included the costs in the imprisonment. This is in conformity with the requirements of section 94, p. 474. A statute will not be declared void in whole or in part unless its invalidity is distinctly pointed out and made clearly manifest. The general rule is that every intendment must be given in its favor. In the absence of any authority cited, or sound reason suggested, showing the invalidity of the section, we are of the opinion the error assigned is not well taken.

The next error alleged is that the judgment of the circuit court included, besides the costs of trial in that court, the costs of the lower court. This, probably, would have been better omitted, and the court below directed to proceed in the matter reviewed according to its decision.

We therefore direct the judgment to be modified according to the view herein expressed, but in all other respects the judgment is affirmed. Neither party is entitled to costs in this court.

(19 Nev. 60)

SUPREME COURT OF NEVAPА.

ORR WATER-DITCH Co. v. RENO WATER Co.

Filed March 2, 1885.

1. PLEADING-UNNECESSARY AVERMENTS-UTILE per Inutile non Vitiatur, A complaint showing a good cause of action is not bad because of unnecessary averments contained in it.

2. BREACH OF CONTRACT-FAILING TO REPAIR DITCH - MEASURE OF DAMAGES. In an action for breach of contract, in that the defendant failed to keep plaintiff's ditch in repair after promising to do so in his contract, the proper measure of damages is the money paid by plaintiff for the repairs which such failure by defendant rendered necessary.

3. SAME-EVIDence-Receipt-CorporatioN-AGENT-STOCKHOLDER.

A receipt issued in the name of a corporation, and signed by a party who owned all the stock, is admissible in evidence, although the claim is made that the corporation was not doing business at the time such receipt was signed, and had no agent.

4. SAME-ADVERTISEMENT-COLLECTOR UNDER CONTROL OF SOLE STOCKHOLDER. An advertisement signed by a collector, under the instructions of a party who held all the stock and controlled the affairs of a corporation, is admissible in evidence, although the claim is made that at the time the advertisement was published the corporation was not doing business, and had no agent.

A party cannot render himself unable to receive a notice, and then be heard to complain because notice is not given.

BELKNAP, C. J., dissenting.

Appeal from a judgment of the Seventh judicial district court, Washoe county, entered in favor of the plaintiff, and from an order denying defendant's motion for a new trial.

Pierce Evans and Clarke & King, for appellant.

W. E. F. Deal, for respondent.

LEONARD, J. Under the laws of this state plaintiff was incorporated December 20, 1875, and defendant, June 6, 1874. It is alleged in the complaint that heretofore, to-wit, on or about the twentieth day of March, 1875, the said defendant, by its officers in such behalf duly authorized, contracted in writing to keep in repair, at its own proper cost and expense, that certain water ditch of the plaintiff, known as the "Orr Ditch," in consideration of the use, for a specified period, of a portion of the water flowing and to flow through said ditch; that during the years 1876, 1877, 1878, and 1879, and prior to the fourteenth day of June of said last-mentioned year, defendant utterly failed and neglected so to do; and plaintiff was compelled to repair said ditch, and was compelled to pay, in and about the repairing of said ditch, and for the preservation thereof, to defendant's use, large sums of money, amounting, in the aggregate, to eleven hundred and thirty-eight 65-100 dollars in United States gold

coin, which defendant promised to pay; that defendant has not paid the same or any part thereof. Judgment for eleven hundred thirtyeight 65-100 dollars was demanded, besides interest and costs.

Defendant denied all the allegations of the complaint, and for further answer alleged the making of the contract of March 16, 1875, whereby plaintiff's grantors and plaintiff bound themselves to furnish to defendant 25 inches of water for 50 years; that said contract was still valid and existing between plaintiff and defendant; that defendant had fully performed said contract on its part, but plaintiff had failed to furnish water as agreed, to defendant's damage in the sum of fifteen hundred dollars, for which sum it asked judgment against plaintiff. Plaintiff recovered judgment for eight hundred thirty-one 45-100 dollars, and this appeal is from the judgment, and the court's order overruling defendant's motion for a new trial.

The court found that on March 16, 1875, and until after the incorporation of the Orr Water-ditch Company, the grantors of plaintiff were the owners of the water-ditch known as the Orr ditch, with certain rights and privileges; that on the sixteenth day of March, 1875, plaintiff's grantors made a contract in writing with the defendant, by the terms of which the owners of the ditch and water above named, granted, bargained, sold, and released to the defendant and its assigns, for their use and benefit for 50 years, to flow continuously, 25 inches of water; that in consideration of such sale defendant contracted, among other things, to keep the ditch in good order and repair between certain points stated, and also that said owners and their assigns might divert the water from said ditch for a reasonable time for the purpose of enlarging the same, whenever the said owners might elect so to do, but for no other purpose; that after the making of said contract, and after plaintiff was duly incorporated, the owners of said Orr ditch, water-rights and privi.eges thereto appurtenart, and their grantors and assigns, sold and assigned, by a good and sufficient deed, all their right, title, and interest in and to said ditch, water-rights, privileges, and appurtenances to plaintiff, which, ever since, has been and now is the owner thereof; that plaintiff and its grantors fully performed their part of said contract; that defendant received all the benefits of said contract from March 16, 1875, until the commencement of this action; that, during the time mentioned in the complaint, defendant wholly failed to keep any part of said ditch in good or any order or repair; that repairs were necessary in each of the years stated, in order that the ditch might carry water; that plaintiff duly demanded of defendant that it should make the necessary repairs; that defendant neglected and refused to make the same, and plaintiff was compelled to make them, in order that the ditch might be used, and, in so doing, paid out eight hundred thirtyone 25-100 dollars, no part of which has been paid, although payment has been demanded; that, by reason of the premises, plaintiff has been damaged in the sum just stated.

Many of the errors urged by appellant rest upon the claim that this is an action of assumpsit, for money paid to the use and benefit of defendant, and not an action to recover damages for breach of contract. It is claimed that the complaint is insufficient to sustain an action for damages.

The Code provides that the complaint shall contain a statement of the facts constituting the cause of action, in ordinary and concise language; and the court may grant plaintiff any relief consistent with the case made by the complaint and embraced within the issue. Comp. Laws, 1102, 1211. The material facts alleged by plaintiff are that defendant contracted to keep the ditch in repair, but failed and neglected to do so; that plaintiff was compelled to do what defendant had agreed to do, for the preservation of his property, and to pay therefor the sum of eleven hundred thirty-eight 65-100 dollars, which sum has not been paid by defendant. The allegations that the money was paid by plaintiffs "to defendant's use," and that "the defendant promised to pay the same," may be treated as surplusage. Without those words the facts alleged in the complaint constitute a cause of action for damages for breach of contract.

In Byxbie v. Wood, 24 N. Y. 610, the court said:

"Having money that rightfully belongs to another creates a debt; and wherever a debt exists without an express promise to pay, the law implies a promise: and the action always sounds in contract. Under the Code this implied promise is treated as a fiction, and the facts (out of which the prior law raised the promise) are to be stated without any designation of a form of action, and the law gives such judgment as, being asked for, is appropriate to the facts. Of course, we cannot now say that a particular phrase makes a particular form of action, so that a party, by its use, may shut himself out from the remedy which his facts would give him."

And in Wright v. Hooker it is said:

"I think these allegations are sufficient to sustain the judgment of the court that Hooker became liable as one of the drawers of the bill in suit. It is true that it would appear that the person who drew the complaint contemplated that Hooker would be held liable in some other capacity. But that is immaterial. The very object of the new system of pleading was to enable the court to give judgment according to the facts stated and proved, without reference to the form used, or to the legal conclusions adopted by the pleader." 10 N. Y. 51

A good cause of action is not destroyed by adding immaterial matter, and a party is not estopped or concluded by a mistaken averment of law in his pleading. Union Bank v. Bush, 36 N. Y. 636, 637; and see Marquat v. Marquat, 12 N. Y. 341; Eno v. Woodworth, 4 N. Y. 253.

It is true, plaintiff did not allege in terms that it had been damaged in the sum paid out, but, from the facts stated in the pleadings, the law presumes damages. Plaintiff was limited to a reasonable and necessary amount paid out for keeping the ditch in repair, since no other injury was pleaded. Upon the facts alleged and proven,

the proper measure of damages was the money paid for necessary repairs. Green v. Mann, 11 Ill. 614.

It was not error to admit in evidence the water receipts of defendant for the years mentioned in the complaint. One of the issues. raised by defendant, whether it constituted a defense or not, was that it did no business and had no agent between April 4, 1876, and August 13, 1879. These receipts, together with the testimony admitted in connection therewith, tended to support plaintiff's claim that defendant did business during the years mentioned, as it did in 1875, and that it received the benefits arising from the contract set out in the pleadings. The same is true of the receipts for 1880. They, in connection with the receipts for 1876-1879, tended to show that the corporation furnished water during the time mentioned in the complaint the same as it did before and after. Newton Manuf'g Co. v. White, 42 Ga. 149. And our conclusion is the same in relation to the advertisement published in the Nevada State Journal, signed by C. A. Richardson, collector. The receipts were issued by Hill, the owner of all the stock, who controlled the affairs of the corporation as he pleased. They were issued in the name of the corporation, and to them were appended its rules. The advertisement was inserted by an agent employed by and acting under Hill's instructions.

The court did not err in refusing to strike out plaintiff's testimony, showing demands and notices served upon George B. Hill, Smith Hill, Hoyt, and Richardson, to repair and clean out the ditch. The facts material to this question are these: The corporation defendant elected trustees in March, 1876. In April following, George B. Hill purchased all the stock, and assumed possession and control of the property of the corporation. But the corporation was not dissolved. in the manner prescribed by law. Comp. Laws, 3410. The trustees did not resign, but between April 21, 1876, and June 14, 1879, did not pretend to act in an official capacity, and, for the reasons stated in Orr W. D. Co. v. Reno W. Co. 17 Nev. 171, were not trustees de jure or de facto. George B. Hill controlled the property and carried on the business as it had been done, and as it was done afterwards, by himself and agents employed by him. But, although he managed the business as he pleased and for his own benefit, as the owner of all the stock, it was done in the name of the corporation. Water bills were made out in the name of defendant. Water consumers were required to comply with rules of the corporation. The water-works were assessed to the corporation.

The motion to strike out was made upon the ground that the notices were given to persons who were not shown to have been agents or officers of defendant, and that notice to such agents or officers only, could bind it. We have said that the corporation was not dissolved in the manner prescribed by statute. It was not dissolved or relieved from its corporate liabilities and responsibilities by a concentration of its stock in the hands of Hill. Newton Manuf'g Co. v. White,