Gray v. Salt River Valley Canal Co.

PORTER, J. The plaintiff brings his action for damages for failure to deliver 100 inches of water purchased by him. Gray was a stockholder in the defendant company, and, under its rules, an application for water during the “water year” was required. He did so apply for 100 inches of water, and paid part of the purchase-money, the treasurer telling him [228] it was not sufficient, and would not enter such payment on the boohs. Subsequently, on receiving the required sum, viz., $125, he did enter such payment on the books of the company. When the payment was made, Gray did not sign a note for the balance, which was one of the rules of the company, and on the fifth day of July, 1884, he paid all that was due, making the full sum of $250. There was a certain form of contract to be signed, restricting the liability of the company in many particulars, and in this, that there should be a pro rata division in case of insufficiency of water to supply all the customers where such insufficiency occurred by reason of such a rise in the river as would break the dam or ditch, or by some unavoidable accident, and fixing the damages of non-delivery of water at a fixed sum. These contracts were to be executed, by the president of the company, and delivered to purchasers of water. No such contract was delivered to plaintiff. He paid the full amount due for the water on the fifth of July, 1884, to the treasurer, and it was .entered upon the books of the company; and at such payment plaintiff refused to receive the usual contract. It is contended that Gray, having been a director of the company, knew of the provisions of these contracts, and should be bound by them. We can see no good reason why he should be, when thee ompany received his money without the .onus of such a contract. The company ignored its own bylaws, and, having received the money, cannot now go behind its action. The case of Pixley v. Western P. R. Co., 33 Cal. 183, 91 Am. Dec. 623, cited by respondents, well applies to this case. There the company had a certain by-law, by which no contract was to be binding on them unless made in writing. Pixley was attorney for the company, and performed his duties with knowledge of the company, and without such written contract. The court say: “It may be that, while such contract remains executory on both sides, an action could not be maintained by either party to enforce it; but, where one of the contracting parties has completely performed it on his part, and thereby rendered to the other the consideration stipulated, the party having received the consideration promised cannot be permitted to escape liability on the naked [229] letter of the statute, because the motive of the law is not such as to afford immunity from liability in such a case.” So, in this case, the company received the money for the water through its proper officer. The knowledge of the servant is the knowledge of the company. Denver, etc. R. Co. v. Conway, 8 Colo. 1, 54 Am. Rep. 537, 5 Pac. 142. As to the sufficiency of water furnished, there was such a conflict of evidence, that this court will not review it. Ehrlich v. Ewald, 51 Cal. 172 et seq. It is somewhat difficult to arrive at the damages; but when we consider the loss of the rent of land from tfi« tenants, and what was a fair rental value of the land upon which a crop was prevented by reason of there being no water, we do not deem the amount of the verdict excessive. There was no assignment of errors in the refusal of instructions asked for by defendant, hence this court will not review any error therein. Richardson v. Kier, 37 Cal. 263. Judgment affirmed.