Ellison v. Jackson Water Co.

Field, J., delivered the opinion of the Court—Terry, C. J., and Baldwin, J., concurring. It is unnecessary to pass in review the several objections raised on — 551 — demurrer to the sufficiency of the complaint, and which are urged upon the attention of the Court by the counsel of the appellant in a very elaborate brief, as the case can be disposed of upon its merits, independent of any question of pleading. The action is brought to recover a judgment against the Jackson Water Company and Bayerque, for work performed by the plaintiff in the construction of a ditch, undeX an alleged contract between him and the company, made in December, 1855, and to obtain a decree enforcing a lien claimed for the work/ upon the ditch thus constructed. Other parties were made defendants, but as no judgment passed against them, they may be dismissed from the consideration of the case. The action, as against the company, rests upon the alleged contract, and as against Bayerque, upon what is inaptly termed by the plaintiff its “ adoption and ratification ” by him. The contract purports to 0have been made on the part of the company, by only three of its five trustees ; one of that number acting as attorney in fact for the third; but whether for this reason, or for any of the reasons assigned, it was without binding obligation, it is immaterial to inquire. The company have not appealed from the judgment, and cannot, therefore, raise any question as to the legality of the contract, and the defense of Bayerque rests upon independent grounds. As against the company, the judgment for damages must be affirmed. It is only necessary, then, to determine the effect of the alleged “ adoption and ratification ” of Bayerque, and the validity of the lien asserted upon the ditch. It cannot in strictness be said that Bayerque “ adopted and ratified ” the contract between the plaintiff and the company. These terms are properly applicable only to contracts made by a party acting or assuming to act for another. The latter may then adopt or ratify the act of the former, however unauthorized. To adoption and ratification there must be some relation, actual or assumed, of principal and agent. No such relation existed between the company and Bayerque ; the contract between it and Ellison was not made in Bayerque’s name, or for his benefit, or upon any authority from him. What the plaintiff, however, intends by these terms, is this: that Bayerque assumed the obligations of the company to Ellison upon the contract, or in other words, guaranteed the performance of the contract on the part — 552 — of the company. In examining, then, the evidence contained in the record, we find nothing which establishes or even tends to establish any undertaking upon which Bayerque can be personally charged. The stipulation.of the solicitor in the foreclosure suit only goes to the extent of authorizing the Receiver to apply one-half of the net proceeds of the extension of Ellison, in pursuance of his contract with the company. It does not purport to make any new contract, or to assume any obligation on the part of Bayerque, even had the solicitor possessed any power to do so, of which there is no pretense. The certificate of the Receiver, based upon such stipulation, and the supposed authority of his appointment, acknowledging" and confirming the contract, was utterly inoperative to charge Bayerque. Neither the order or stipulation gave the least power to the Receiver to execute any such acknowledgment and confirmation. And, besides, the Receiver testifies that neither Bayerque nor any of his agents either knew of it or assented to it. The letter of Parsons does not even purport to have been written on behalf of Bayerque, or by his direction, or with his knowledge or approbation. It purports to have been written after a consultation Avith T. F. Moss, who is not a party to the suit. This Moss was, it Avould seem, a superintendent of the affairs of Bayerque in connection with the water ditch, but that his authority went beyond an ordinary superintendence noAvhere appears. No evidence was given that he possessed any power to make an original substantive contract of the character claimed by the plaintiff. The record is bare of any attempt to establish the possession of such a power. But aside from the view of the case upon the record, there is another fatal objection to the plaintiff’s recovery. The undertaking which he ,seeks to establish against Bayerque falls within the Statute of Frauds. It is an undertaking to perform a contract which the Jackson Water Company had made, and which it Ayas obligatory upon the company to perform; in other words, it Avas an undertaking to answer for the debt, default or miscarriage of another. By the 12th section of our Statute of Frauds, which is substantially borrowed from the 4th section of the English statutes of 29 Charles II, it is essential to the validity of any such contract, that it, or some note or memorandum thereof, be in writing ; that it express the consideration; and that it be subscribed by — 553 — the party to be charged thereby. Neither of these particulars are found in the present case. There was no agreement in writing, or any note or memorandum of any agreement, and of course it would be idle in such case to speak of the want of an express consideration or the subscription of the party. The plaintiff was bound by his contract to perform certain work for the Jackson Water Company. A promise to Bayerque to perform this contract could furnish no consideration for a promise by him. The consideration of the original contract could not attach to the subsequent promise. On this point the authorities i are numerous, and without conflict. Clay v. Walton, decided by this Court, (9 Cal. 328) is one, and the cases cited in the opinion fully sustain the position. In Packett v. Bates, (4 Ala. 390) the plaintiff had agreed with one Kelly to construct a house, at the usual rate of charges. Whilst the house was in the progress of erection, Kelly left the State, and went to Louisiana. The defendant then verbally promised to pay the plaintiff, if he would proceed and complete the work; and it was held the promise was collateral, and within the statute, and consequently without binding effect? TW- consideration resting wholly in the performance by the plaintiff of his antecedent contract, did not support the promise of the defendant. The remaining question for determination relates to the validity of the lien asserted by the plaintiff upon the ditch. The Act of 1850 gave mechanic’s lien only upon buildings and wharves. (Comp. Laws, 808.) The Act of 1853 extended the Act of 1850, so as to include in its provisions bridges, ditches, flumes or aqueducts constructed to create hydraulic power, or for mining purposes. (Comp. Laws, 811.) The Act of 1853 repealed the Act of 1855. (Sessions Laws, 156, sec. 12.) The repeal earned with it the supplementary Act of 1853, which extended the provisions of the original Act. Without the original Act, there was no mode of enforcing the supplementary Act. The latter was so dependent upon the former as to become utterly inoperative upon the appeal. The Act of 1855 gave a lien only upon buildings, wharves and other superstructures. The same is the case with the Statute of 1856. The work for which the plaintiff asserts a lien, was performed between the twenty-second of December, 1855, — 554 — and the first of. February, 1857, and was therefore chiefly done after the Act of 1856 took effect. It is immaterial, however, under which Act the work was done, as both give a lien upon the same structures; neither gives a lien upon ditches in terms. The flumes constructed at different parts of the line cannot change the general character of the work as an excavation. These flumes were mere connecting links of • the ditch, over ravines and gulches. As a ditch, then, the general work must be regarded, and as such, the statute gives no lien upon it for labor bestowed, or materials furnished, in its construction. The language of the statute is, “ building, wharf or other superstructure.” A ditch, of course, is not a building, or a wharf, and in no sense can it be designated a superstructure. The plaintiff cannot, therefore, maintain the lien he asserts, under the statute ; and outside of the statute, there is no lien which can be enforced. Equity raises no lien in relation to real estate, except that of a vendor for the purchase money. We purposely refrain from the expression of any opinion on the point whether Bayerque acquired any lien by his mortgage, or any right by his purchase, under the decree in the foreclosure case, upon the extension constructed by the plaintiff. The mortgage, it is true, does, in terms, purport to cover, not merely the works completed, or in progress at the time, but also lines of ditches and flumes for conducting or distributing water, which might be thereafter constructed by the company, as appurtenant to, or connected with, the works. This broad language cannot, however, we apprehend, give a lien upon ditches, for the construction of which no steps had been taken, by a survey and location of their lines, and which rested merely in contemplation. Some specific right of way—capable of identification from a previous survey or location—would seem to be necessary to constitute such property as is capable of mortgage or transfer, so as to pass subsequently constructed works thereon. In the present case, it does not appear from the record, whether, at the date of the mortgage, any survey or location had been made of the line of the extension: and without it, the property was not covered by the mortgage, and did not pass by the 'master’s deed. It would still remain subject to execution on the plaintiff’s judgment, as the property of the company. The — 555 — effect, however, of the mortgage in creating a lien, cannot be determined upon the evidence in the present case. It follows, from the views we have taken, that the judgment for damages against the Jackson Water Company, must be affirined, and that the judgment for damages against Bayerque, and the decree adjudging a lien upon the works constructed by the plaintiff, must be reversed, and the cause remanded for further proceedings. Ordered accordingly.