STATEMENT OF FACTS. In the fall of 1875, C. A. Flanders and A. S. Bryant, floated a quantity of sugar pine blocks and cedar posts, valued at $1.417.40, down the Mokelumne river from Amador county, which lodged on the river banks upon land of the defendant, D. J. Locke, and he hauled the greater portion of them to his house during the winter, and split up into cord wood. But, before this was done, Flanders & Bryant, by Flanders, demanded the property from Locke, offering to pay any damage he had sustained. He refused the demand, but did not claim to have suffered damage. Suit was brought September 6, 1876; was tried by jury, May 25, 1877, and a non-suit granted on the ground that plaintiff was a trespasser, and had not ascertained and tendered to defendant the amount of damage sustained. Motion for new trial was denied August 28, 1877, and appeal taken by plaintiff, September 10, 1877. Terry, McKinne & Terry, attorneys for plaintiff and appellant. OPINION BY THE COURT. The plaintiff was not a trespasser upon the land of the defendant, and as the latter had expressly disclaimed any damage, the plaintiff should not have been non-suited for the failure to tender the amount of the supposed damage. Judgment and order reversed and cause remanded for a new trial. Remittitur forthwith. [No. 4459.] [Filed April 19, 1878.] THE STOCKTON & LINDEN G. R. CO. VS. THE STOCKTON & COPPEROPOLIS R. R. CO. Appeal from Fifth District Court. San Joaquin County, S. A. BOOKER, Judge. DAMAGES OF CORPORATE ROAD COMPANIES.-Damages for the infringement of one Corporate Road Company upon the rights of another, should be limited to the actual injury sustained, and not granted for the entire value of the land composing the road bed. STATEMENT OF FACTS. On August 29, 1869, the Supervisors of San Joaquin county, granted to the plaintiff the rights to construct and gravel for a toll road, that part of Weber Avenue between East and Aurora streets, in the City of Stockton, which was so done for a distance of 2280 feet along its centre, and tolls were so collected. On November 25, 1870, the Common Council of the City of Stockton granted to the S. & C. R. R. the privilege of building its track along the central line of the same said Weber avenue, for its entire length, and the track was laid prior to December 10, 1870, and right to maintain the same granted by the City Council, February 20, 1871. Plaintiff had already constructed the gravel road along Weber Avenue in 1868, prior to its being included in the city, so that its rights had attached by use and possession before the granting of right of way to the Railroad. Action was brought December 10, 1870, claiming damages to amount of full value of the land and costs of suit. Defendants claimed that the Gravel Road Cc., was not a corporation de jure, even if de facto, and that their right to collect tolls having expired in 1869, they could have sustained only nominal damages, not being the owners of the land taken. Cause tried May 6, 1874, and verdict for plaintiff of $5,500, and costs $249.80. Defendants moved for a new trial on June 18, which was denied, and appeal taken August 6, 1874. Terry & McKinne, attorneys for plaintiff and respondent. W. L. Dudley and J. H. Budd, attorneys for defendant and appellant. OPINION BY THE COURT. Upon the former appeal the decision here proceeded only upon the point that the plaintiff being a corporation de facto, should not have been non-suited, because not showing itself to have been a corporation de jure. Upon the return of the cause to the Court below, a new trial was had, and resulted in a verdict for the plaintiff for some $5,500. The plaintiff would seem to have recovered the entire value of the land composing the bed of the road, for the disturbance of which the action was brought; while it is clear that the recovery should have been limited to the amount of the damages sustained by reason of the acts of the defendantwhich, as the case now appears in the record, are but nominal. Judgment and order denying a new trial reversed, and cause remanded for a new trial. Remittitur forthwith [No. 5792.] [Filed April 19, 1878.] SIMON, JACOBS & Co. vs. SCOTT Appeal from the Thirteenth District Court, Merced County-J. B, CAMPBELL, 'Judge. PLEADINGS GOODS SOLD TO A WIFE.-Recovery cannot be had for goods sold to a party, in the absence of an averment in the complaint that they were sold and delivered to him. If sold to a wife, (she being circumstantially authorized to purchase same,) averment must be made that they were sold and delivered to the husband, or no recovery can be had from him. DEMURRER.-When averment is not so made, a demurrer by defendant should be sustained. STATEMENT OF FACTS. The firm of Simons, Jacobs & Co., merchants of Merced, sold various goods for housekeeping use, amounting to $1,066.02, to Mary S. Scott, wife of Samuel Scott, the defendant, between August 22 and September 7, 1876, for which plaintiff, claims payment in coin, and interest after sixty days, and brings action against Samuel Scott, not making Mary S. a party. Defendant claims he did not in any way authorize the firm to give credit to his wife, and enters demurrer, that she should be made a party to the suit, which was overruled and judgment rendered for plaintifi for amount of bill and costs. Defendant appealed August 14th, 1877. Ward & Wigginton, and Terry, McKinne & Terry, attorneys for plaintiff and respondents. Thos. Bodley and W. P. Veuve, attorneys for defendant and appellant. OPINION BY THE COURT. The complaint does not allege a sale and delivery of goods to defendant. Whether defendant is liable for the the goods furnished to the wife or not, it is certain that plaintiffs cannot recover against him their value, in the absence of an averment that they were sold and delivered to him. If she was authorized by reason of her relation to her husband, the nature and character of the goods, and the husband's circumstances, to purchase them, the goods were in law sold to defendant, and the averment should have been to that effect. The averments in respect to furnishing the goods to the wife, etc., might have been omitted as mere evidence, and not the statement of ultimate facts. The demurrer should have been sustained. Judgment re versed and cause remanded, with direction to the Court below to sustain the demurrer to the complaint. [No. 4964.] [Filed April 18, 1878.] ROBINSON vs. GLEESON. Appeal from 17th District Court-Los Angeles County. SEPULVEDA, JUDGE. SUCCESSION OF TITLE AND INTEREST IN LANDS.-Purchasers of land, from parties whose title is contested or disturbed, cannot, if in possession, and having made improvements, be deprived of their interest or claim of title without a hearing; nor can such controversy be completely determined in their absence. AMENDED COMPLAINT.-When facts of such purchase and possession are brought to the attention of the parties in contest of title, complaint should be amended to embrace such persons, and if neglected, the Court, of its own motion, should order it done at the proper time, in order to settle the whole controversy in one action. STATEMENT OF FACTS. A. Robinson, as trustee,-by Deed of Trust from A. Stearns, of May 25th 1868-made two contracts for sale of lands to defendant, Wm. H. Gleason, one of February 6th, 1868, of 120 acres, and one on March 9, 1870, of 160 acres. On the first defendant, paid down $340, on the second, $520-gave notes for the balances and took possession. Defendant then sold of the 120 acre tract, 10 acres each to David Taylor, Wm. McCracken, Robert Cummings, C. J. Lansour, and James McDonald, who took possession, made improvements, and still occupy the land. Defendant Gleason, not paying his notes when due, action was brought to declare the contracts forfeited, and restore the premises to plaintiff. Upon trial judgment was for plaintiff, and to debar defendant from all further title and interest, and costs $67.20. Motion for new trial was denied, and an appeal taken, upon which the Supreme Court modified the judgment, ordering the defendant's notes to be returned. Defendant then asks for a rehearing, claiming that if notes are returned the money before paid should be returned also, as land is now worth $50 per acre.-Also that the parties to whom he had resold should become parties to the action--they being in actual and open possession, etc.-This was objected to because their contracts of purchase were not of record. New trial being denied, appeal was taken on these points, which is now decided. Brunson & Eastman, attorneys for plaintiff and respondent. H. S. Brown and R. M. Widney, attorneys for defendant and appellant. OPINION BY THE COURT. Among the matters of defense the answer avers that after the purchase by the defendant from the plaintiff of the land in controversy, and prior to the commencement of the action, he, the defendant, sold portions of the land to Taylor, McCracken, Cummins, Lansour and McDonald, ten acres to each, and the purchasers entered into possession, erected houses and made other improvements on the land, and they or their assigns were at the commencement of the action, and still are in the open and notorious possession thereof, of which the plaintiff had notice. The answer raises the point that these persons were necessary parties to the action, without whose presence a complete determination of the controversy cannot be had. At the trial it was admitted that all the averments of the answer in this particular were true, with the additional fact that the contracts of sale from the defendant to Taylor and others were not of record at the time of the commencement of the action, and that the plaintiff had no actual notice thereof; but that Northam and Martin, two of the beneficiaries of the trust, had such notice. It is contended on behalf of the plaintiff, that it was unnecessary to make these persons parties defendant, for the reason that their contracts of purchase were not of record at the commencement of the action, and that the plaintiff had no actual notice thereof. But section 726 of the Code of Civil Procedure applies only to an action for the foreclosure of a mortgage, and section 754, only to an action for partition The present action is not within either of these categories, and these sections do not apply to it. The purchasers from the defendant who had succeeded in his interest in and to the several tracts sold to them respectively, and who had entered into the possession and erected improvements thereon, could not be deprived of their interest or claim of title, nor be disturbed in the possession, without first having had their day in Court; nor could there be a complete determination of the controversy in the absence of these parties. When the facts were brought to the attention of the plaintiff by the answer, it was his duty to amend his complaint and bring in these persons, and if he neglected to do so, the Court of its own motion should have ordered it to be done, at the proper time, in order that the whole controversy might be settled in one action. Judgment and order reversed and cause remanded for a new trial. [No. 5675.] [Filed April 19, 1878.] LORENZ vs. JACOBS Appeal from Ninth District Court, Trinity County, A. M. ROSBOROUGH, Judge. TENANCY IN COMMON.-PARTITION, OR SALE OF COMMON PROPERTY-Any of the co-tenants of real property may institute proceedings for a partition, or a sale, if partition cannot be made without great prejudice to the owners. But in ather case, it is indispensable that an interlocutary decree be first entered, definitely ascertaining the rights and interests of the respective parties in the subject matter. STATEMENT OF FACTS. Henry Lorenz, Nicholas Lorenz and Jacob Liebrandt plaintiffs; and Bartel Jacobs, Henry Jacobs, David Evans and Chas. H. Bartlett, defendants in this. |