and surrender of the contract. We think | render judgment on the findings in favor of the contract was sufficient to authorize the the plaintiff. relief prayed for.

Lastly, it is claimed that the action was brought too late. Cases are cited by counsel in which shorter delays were held to be fatal, but each case must depend upon its

We concur: PATERSON, J.; THORNTON, J.; MCFARLAND, J.; SHARPSTEIN, J.

MARSHALL et al. v. HANCOCK et al. (No. 13,058.)

(Supreme Court of California. Aug. 2, 1889.) APPEAL-PROOF OF HANDWRITING.

1. The refusal of a court to allow a question to be answered by a witness will not be considered on appeal, where there is nothing in the record to show what the proposed testimony was.

2. To show that a signature to a deed was that of tice of the peace, and his docket was identified, and one W., deceased, it was proven that he was a juscertain signatures shown to have been those of W. Held, that under Code Civil Proc. Cal. § 1944, providing that evidence respecting handwriting may be given by comparison with writings shown to be genuine, an expert could testify that the signatures on the record and the one on the deed were in the same handwriting.

3. The evidence of a deceased person; given in a suit between different parties and involving another subject-matter, is not competent, under Code Civil Proc. Cal. § 1870, subd. 8, rendering the testimony of a deceased person, given in a former action between the same parties, competent.

In bank. Appeal from superior court, San Bernardino county; E. PARKER, Judge.

Code Civil Proc. Cal. § 1870, subd. 8, provides that the testimony of a deceased witness, given in a former action between the same parties, relating to the same matter, shall be competent.

Paris, Goodcell & Fox, John McIntyre, and J. J. De Puy, for appellants. Barclay, Wilson & Carpenter, Rowell & Rowell, H. C. Rolfe, Harris & Gregg, and M. T. Allen, for respondents.

own circumstances. There is no absolute bar short of the time fixed by the statute of limitations. There is nothing of unfairness or injustice in allowing the appellant his remedy in this case after the delay complained of. It is perfectly apparent from the findings and the evidence that there was a systematic and persistent effort all along on the part of Mills and Wicks to mislead the plaintiff and prevent his getting title to the property. It was not transferred to the corporation, but he was allowed to believe it was, if not led to that belief by these parties. Wicks conveyed to Mills, and Mills conveyed to one French, an employé, without consideration for the conveyance, and French, acting undoubtedly for Mills, endeavored to get possession of the property, and claimed that he was the owner, and tore down the appellant's improvements. That French held the title for Mills, and with the sole purpose of attempting to deprive the appellant of the property, is apparent from the fact that upon the death of Mills, although French held Mills' deed for the property, it was inventoried by the widow as a part of the estate. French conveyed the same to the respondent, who admits in his brief in this court that he holds it as a trustee for the widow. In other words, so far as it affects this question of delay in bringing the action, this property must be regarded as having been the property of the original vendors all along, and that they have been attempting to keep it out of the appellant's reach. Besides, one of the very material facts in the case, and one without which probably he could not have recovered, was that this contract was The controverted question in the court made in the actual presence of the owners, below was as to the genuineness of a deed and the money paid to and received by from one Michael White and wife to Henry them, and this was not discovered by the Hancock, under which the defendants appellant until a very short time before claimed to be the owners of one-half of the bringing this suit. Without a knowledge real estate in controversy. The deed apof this fact, if there were no others tending peared upon its face to have been regularly to excuse his delay, he might well have hes-executed and acknowledged. The plainitated about bringing the suit; and, taking tiffs claimed it to be a forgery, and that this circumstance together with the conduct Michael White was out of the state at the of the vendors, we are not inclined, on the time it purported to have been signed and mere ground of delay in bringing the action, acknowledged. The court below, after to deny the appellant his rights. The hearing testimony as to the execution of court finds that the deeds bringing the title the deed, held the same to have been exedown to the respondent were recorded im- cuted, and admitted it in evidence. The apmediately after their execution, and were pellants assign several errors upon rulings constructive notice to the appellant. Con- made during the hearing, and claim that ceding this, it makes the effort to mislead the decision of the court that the deed was the appellant only the more apparent; but genuine was not sustained by the evidence. the doctrine of constructive notice has ap-A witness called by the plaintiff testified plication only to a subsequent purchaser that he knew White; that he was at or incumbrancer, and can have no bearing White's house, on the ranch, cultivated his on the question presented here. The finding that the Pomona Land & Water Company notified the appellant that it repudiated the contract was immaterial, for the reason that that company never had any title to the property, and was not a party to the contract, or interested in it in any way. Judgment and order reversed, with instructions to the court below to conform its conclusions of law to this opinion, and

WORKS, J. Action to quiet title. Judg. ment for defendants. Motion for new trial overruled. Plaintiff appeals.

land, and had a conversation with him. He was then asked what the conversation was. To this question the defendants objected, and the objection was sustained. This is assigned as error. We do not know from the record before us whether the court erred in this ruling or not. Where the question itself does not indicate whether the answer to it will be material evidence or not, the party seeking to introduce the evi

dence must, in order to present the question | the deed in controversy. The admission of to this court, make an offer of what he pro- this testimany was erroneous. 1 Greenl. poses to prove, so that the court below Ev. §§ 125, 163; Code Civil Proc. § 1870. But and this court can determine whether the we have examined the evidence carefully, proposed proof is material or not. There and find nothing in it to prejudice the apis nothing in the record to show what the pellants. Therefore, the ruling of the court, proposed testimony was. The question in- although erroneous, was harmless, and we dicated nothing of the kind. The witness cannot reverse the case on that ground. is asked for a conversation between White Certain other items of evidence are objectand himself. The conversation, if there ed to, on the ground of immateriality. was one, may have been about a matter The court seems to have given rather too entirely aside from the matter under inves-wide a range to the evidence on the questigation. Therefore the record fails to tion as to the genuineness of this deed, but, show any error in this ruling. In order to upon a careful examination of the evidence, show the absence of White at the time the it does not appear to us that there was deed purported to have been executed, the anything in the rulings or in the evidence plaintiffs proved by his wife that he left admitted that could have worked the aphome, and that she accompanied him part pellants any injury. The point is made of the way. She was then asked if, when that the decision of the court on this quesshe bid him good-bye, he told her where he tion was not sustained by the evidence, but was going. This was objected to, and the we think otherwise. Judgment and order objection sustained. This question is like affirmed. the one above referred to. There was no offer to prove any statement that would We concur: MCFARLAND, J.; PATERSON, have tended to corroborate the testimony J.; SHARPSTEIN, J. of other witnesses that he went to Lower California, nor did the question indicate

that such would be her answer. We can- HEILBRON et al. v. 76 LAND & WATER CO.

(No. 12,684.)

(Supreme Court of California. Aug. 5, 1889.)

RIPARIAN RIGHTS INJUNCTION.

not assume error in order to reverse the case, nor can we, for the purpose of sustaining the appellants' position, presume what he fails to show, viz., that the answer of the witness would have been maWhile an upper riparian owner cannot divert terial if it had been allowed. The defend- water for sale or use on non-riparian lands, or ants, in order to prove that the name of unreasonably use or divert the water to the injury White to the deed was in his handwriting, of owners further down the stream, it is error, proved that White had, prior to that time, upon enjoining him from such unauthorized diverbeen a justice of the peace. A record from sion, to require him to permit no water to flow into a canal constructed by him for the purpose of the clerk's office, shown to have been irrigating non-riparian land, but which, though his docket, kept by him as such justice, not so intended, can be used to irrigate his riparian was offered in evidence, and certain sig-land, and compel him to close up his canal, as he natures of White appearing therein were shown by a witness to have been in White's handwriting. This was followed by expert evidence to the effect that the sig

may hereafter desire to use it legitimately, either to water riparian land, or to carry off surplus water in time of flood, when no one below him would be injured thereby.

In bank. Commissioners' decision. Appeal from superior court, Tulare county; WILLIAM W. CROSS, Judge.

August Heilbron and three co-tenants of land lying on Kings river brought this action against the 76 Land & Water Company, a corporation, to enjoin it from an illegal diversion of the water of said stream. Judgment for plaintiffs, and defendant appeals.

Wigginton & Hawes, for appellant. D. S. Terry and Brown & Daggett, for respondents.

natures in the record and the one to the deed were in the same hand writing. The appellants contend that the record admitted in evidence was not sufficiently authenticated or proved to be a public record kept by White. But this was entirely unnecessary. The evidence was not offered to prove the contents of the record, or to establish any fact. The name appearing therein was the only material thing. It could make no difference whether the name offered appeared in a public record, a private writing, or on a blank piece of paper. If admitted, or proved to the satisfaction of the judge, to be genuine, it could BELCHER, C. C. Action to enjoin the diproperly be compared with the handwrit- version of water. The complaint was filed ing in controversy, for the purpose of show- November 18, 1884, and the facts alleged ing that the latter was genuine. Code therein are, in substance, as follows: The Civil Proc. §§ 1943, 1944. Of course, the rec-plaintiffs are, and for more than two years ord introduced did not prove that the name have been, seised and possessed as tenants of White, appearing therein, was his genu-in common of a tract of land situate in the ine signature; but there was positive evidence to that effect, which we must presume was proof to the satisfaction of the judge that it was genuine. The defendants were permitted to introduce in evidence the testimony of White, given in an action not shown to have been between the parties to this action, or to have involved the matter in controversy here. The object was to show declarations of White, who was deceased, tending to show that he executed

counties of Fresno and Tulare, known as the "Kings River Ranch," and containing about 54,000 acres. A natural water-course known as "Kings River," flows for a distance of over 30 miles along and forms one of the boundaries of the ranch. A branch of the river, called "Cole Slough," flows through the ranch for a distance of about 10 miles, and at ordinary stages carries the greater portion of the water of the river. In its course through and along the bound

is feasible and necessary to make the lands produce crops of grain, hay, vegetables, and fruits, and will thereby greatly add to the value thereof; that it ever has been and now is the purpose and intention of defendant to make only a reasonable use of the waters of the river for irrigating its lands, and that it is not now, and never has been, the purpose or intention of defendant to make any use of the waters of the river to the injury of plaintiffs in any manner whatever.

ary of the land the water of the river the purpose, among others, of irrigating moistens the soil, and causes the produc- said tract of land, and that such irrigation tion and growth of valuable crops of grasses. Plaintiffs, in order to increase the fertility of their lands, and to afford an abundance of grass and water for their stock on the ranch, have constructed and maintained a dam on Cole slough, and have constructed canals and ditches, by means of which they have for more than two years conducted the waters of the river over and upon their lands, and have thereby irrigated a large portion thereof, causing the same to produce more abundant crops, and furnishing water for their live- The court found all the facts as to the stock on the land. For more than two plaintiffs' ranch; its possession, size, locayears plaintiffs have had more than 13,000 tion along Kings river; use for the pasturhead of live-stock grazing on their land, age of stock and raising alfalfa; necessity and the water of the river is necessary for for water to irrigate it, and supply the the subsistence of such stock, and is the stock grazing thereon,-to be as alleged only water to which the stock on the ranch in the complaint. It further found that decan have access. Plaintiffs are also culti- fendant was a corporation, and that in vators, and have growing on the ranch 1883 it constructed a large canal leading about 3,000 acres of alfalfa, and the waters out of the channel of Kings river at a point of the river are necessary for the growth of on the south side thereof, about 25 miles that crop. The defendant is a corporation above the place where Cole slough conorganized for the purpose of diverting the nects with and receives its water from the waters of Kings river to be used in irrigat-river; that in the month of January, 1884, ing lands at a distance from the river. It defendant, without the consent of plainhas constructed a canal about 100 feet wide tiffs, commenced to divert, and has ever and 4 feet deep, with a grade of 18 inches since continued to divert, from the channel to the mile, and since about the 1st of No- of the river, by means of its canal, 750 cubic vember, 1883, without the consent and feet of water per second; that the water against the will of plaintiffs, has thereby so diverted has been carried to lands locatdiverted from the river, at a point above ed at a distance from the river, and used plaintiffs' land, about 1,000 cubic feet of to irrigate lands which do not border on water per second. The water so diverted the channel of the river or touch the banks flows away from the river and plaintiffs' thereof, and that the canal is so constructland, and no portion of it is or can be re-ed that the water diverted by it does not turned to the river, but the whole thereof and cannot flow back into the river; that is lost or dissipated by absorption and by reason of the said acts of defendant the evaporation. By reason of this diversion quantity of water flowing to and through the quantity of water flowing past and plaintiffs' lands has been materially diminthrough plaintiffs' lands has been greatly ished, so that their cattle have not had a diminished, and rendered insufficient for the sufficient quantity to drink, and they have purposes of the ranch. Defendant threat- not had sufficient to irrigate their alfalfa ens to, and, unless restrained, will, continue fields. The court also found that defendthe diversion. Its canal has sufficient ca- ant is the owner of the lands mentioned in pacity to divert all the water flowing in its answer, and that portions of these the river at low stages, and such continued lands border on the south bank of Kings diversion will cause to the plaintiffs irrep-river, below where its canal is taken out; arable damage, will greatly impair the value of their lands, and will destroy the crops of alfalfa growing thereon.

*

*

"that the irrigation of the larger portion of defendant's lands from its said canal is feasible, and irrigation is necessary to make The answer denies, among other things, said lands produce crops of grain, hay, that defendant was or is organized as a vegetables, and fruits, which will thereby corporation for the purpose of diverting add greatly to the value of said lands; the water of Kings river to be used in irrigat-"that one of the purposes for which the deing lands at a distance from the river, and fendant constructed said canal was to irrialleges that it was organized for the purpose gate said lands; that said defendof diverting" the waters, or a portion of the ant has not at any time irrigated any of its waters, of said river to be used in irrigat- said lands from or by means of said canal; ing lands near to and on the banks of said * and said defendant does not intend river, as well as at a distance therefrom." to irrigate any of said lands by means of The answer further denies that defendant's said canal." Judgment was entered that canal has capacity to divert more than 750 defendant, its officers, agents, etc., be forfeet of water; and it alleges that at the ever enjoined and restrained from diverting time of the commencement of this suit, and any of the waters of Kings river into or for more than three years prior thereto, de- through its canal, or from causing, or in fendant was and now is seised and pos- any manner permitting, any portion of the sessed of certain lands situate in the coun- waters of the river to flow into or down its ties of Fresno and Tulare, known as the canal; and the judgment further ordered "76 Lands," and containing about 30,000 and decreed that defendant forthwith fill acres; that Kings river flows for a dis- up the head of its canal and close the same, tance of about nine miles along and forms so that no water can or will flow from the one of the boundaries of said tract of land; river into it. The appeal is from the judg that defendant constructed its canal for ment and an order denying a new trial.

(Code Civil Proc. Cal. §§ 537, 538) does not require that the amount due on the contract shall appear from the contract itself, but that the amount of the indebtedness shall be shown by affidavit. Held a proper case for attachment.

In bank. Appeal from superior court, Los Angeles county; H. K. S. O'MELVENY, Judge.

Wicks & Ward, for appellant. Barclay, Wilson & Carpenter, for respondent.

We have stated the case very fully, be- | in an action for breach of contract, the statute cause, in our opinion, the judgment is not warranted by the findings, and must therefore be reversed. It clearly appears that defendant is a riparian proprietor above the plaintiffs. Its lands can be irrigated 2. Defendant, after agreeing to sell for $12,000 with water carried through its canal, and within one year, agreed to account "for the proirrigation is necessary to make them pro-ceeds of sale of said premises whenever, prior to ductive. Being an upper riparian owner, the expiration of said twelve months, he may efdefendant is entitled, as against the plain-fect a sale of said premises." Held, that this was tiffs, to make a reasonable use of the water sale was made, but was an absolute promise to pay not an agreement to pay only on condition that a of the stream for the purpose of irrigating within the year, and to pay before the end of the its riparian lands, and it is only for an un-year, if a sale should be sooner effected. reasonable and unauthorized use that an MCFARLAND, J., dissenting. action will lie. What is a reasonable use is a question of fact and depends upon the circumstances appearing in each particular case. Lux v. Haggin, 69 Cal. 394-409, 10 Pac. Rep. 674; Swift v. Goodrich, 70 Cal. 103, 11 Pac. Rep. 561; Stanford v. Felt, 71 Cal. 249, 16 Pac. Rep. 900. One of the purposes for which the defendant constructed its WORKS, J. This is an appeal from an orcanal was to irrigate its lands; and the fact der dissolving an attachment. The comthat it has not yet used the water upon its plaint is founded on the following agreeown lands cannot destroy or impair its ment: "This agreement, made and entered right. Lux v. Haggin, 69 Cal. 390, 10 Pac. into on the 28th day of July, 1887, by and Rep. 753. So the fact, if it be a fact, that between C. E. Mackey, of the city and defendant does not intend to irrigate any county of Los Angeles and state of Califorof its lands by means of the canal does not nia, who will be hereinafter referred to as affect its right. It may, at any time the party of the first part, and Poindexter change its intentions in this respect. This Dunn, of the county of St. Francis, and being so, we are unable to see how the state of Arkansas, who will be hereinafter court could properly grant a perpetual in- mentioned as the party of the second part, junction restraining the defendant from witnesseth, that the said second party, ever, at any time or for any purpose, causing having this day purchased from said party or permitting any water from the river to of the first part, as agent for George D. flow into or down its canal. Besides, there Rowan, the following described lots of land may be times of flood or high water when situated in the city and county of Los Anno one below would be injured if defendant's geles and state of California, to-wit, lots canal should carry away from the river sur-numbered nineteen (19) and twenty (20) of plus water to its full capacity. Why should defendant be required to fill up the head of its canal so that no water at such times can flow into it? See Edgar v. Stevenson, 70 Cal. 286, 11 Pac. Rep. 704. From what has been said it is not to be understood that defendant has a right, as against riparian owners further down the stream, to divert water from the river for the purposes of sale, or for use on lands which are not riparian. We advise that the judgment and order be reversed, and the cause remanded, with directions to the court below to enter a decree in conformity with the views expressed in the foregoing opinion.

We concur: HAYNE, C.; GIBSON, C.

the Dana tract, as per map recorded in Book 5, at page 324, of Miscellaneous Records of Los Angeles County, for the sum and price of ten thousand dollars, (10,000,) the said first party, for and in consideration of the sum of $1 cash in hand to him paid by the said second party, the receipt of. which is hereby acknowledged, and of the covenants and agreements hereinafter mentioned and set forth, hereby agrees to take charge of and sell said lots of land for said second party as follows, to-wit: The said first party agrees and binds himself to sell said lots for said second party within twelve months from the date hereof, and to guaranty, account for, and pay over to said second party at least $12,500 net therefor, except interest paid by said second party on the deferred payment for said lots. Said second party agrees that said first party may retain and have, and said first party agrees to accept, all excess over said $12,500 which he may receive for said lots for his compensation for his services as agent herein. Said first party agrees to account to said second party, or his authorized agent, for the proceeds of sale of said premises as above stated, whenever, prior to the expiration of said twelve months, he may effect a sale of said premises. It is agreed 1. Defendant, by agreement in writing, bound that said first party may sell said lots for himself absolutely to sell certain land belonging not less than one-half cash and the balance to plaintiff within a specified time, and to realize within twelve months from date of sale. therefrom the sum of $12,500. He failed to sell, with interest at 10 per cent. per annum. In and plaintiff sued for $3,500 damages, alleging that the highest market value of the land between witness whereof said first and second parthe date of the agreement and the commencement ties have hereunto set their hands and of the action was $9,000. To authorize attachment seals." The complaint alleges that the de

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are reversed, and the cause remanded, with directions to the court below to enter a decree in conformity with the views expressed above.

DUNN V. MACKEY. (No. 12,915.) (Supreme Court of California. Aug. 2, 1889.) ATTACHMENT-WHEN LIES.

contract itself, (Code Civil Proc. § 537,) but that the amount of the indebtedness shall be shown by affidavit, (Id. § 538.) Attachment may issue in an action for damages for the breach of a contract. Donnelly v. Strueven, 63 Cal. 182. And this where proof is necessary at the trial to show the amount of damages. Drake, Attachm. §§ 13-23. But there must exist a basis upon which the damages can be determined by proof. Thus it is said, "where the contract sued upon furnished a standard by which the amount due could be so clearly ascertained as to enable the plaintiff to aver it in his affidavit, or the jury by their verdict to find it, an attachment might issue." Id. § 15; Wilson v. Wilson, 8 Gill, 192. To the same effect see Wade, Attachm. § 11 et seq.; Saw-Mill Co. v. Fowler, 28 Conn. 103; Lawton v. Reil, 51 Barb. 30; Lawton v. Reil, 34 How. Pr. 465; Ferner v. Collins, 1 Mart. (N. S.) 369; Cross v. Richardson, 7 Mart. (La.) 166. The case of Donnelly v. Strueven, supra, is in point. The action was to recover damages for the breach of a contract to buy and pay for certain personal property, and this court held that it appeared from the complaint, as well as from the affidavit, that the plaintiff's action was founded in contract, and not in tort, and therefore defendant's ground of motion was not well taken. It is true that the question of uncertainty as to the amount of the debt was not directly determined, but it existed there as clearly as in the case before us, and it was held that the attachment was properly issued. Counsel for respondent rely upon Hathaway v. Davis, 33 Cal. 165, as supporting their position, but it is directly against them. It was held that an appeal-bond was a contract for the direct payment of money, although the amount to be paid was not fixed by the instrument itself, and that attachment would lie. The court recognized the well-established rule that it is only necessary that the contract be such as to furnish information from which the amount can be ascertained, and said: "We think a clew is afforded in the next section; (121,) where the plaintiff is required to make a certain affidavit in order to procure an attachment. He must be able to swear, among other things, that the defendant is indebted in a certain sum, specifying the amount. This language excludes all causes of action for unliquidated sums of money, for, until they have been liquidated by the verdict of a jury, it is impossible for the plaintiff to swear to the amount, and confines the right of the plaintiff to an attachment to cases of contract, where the liability of the defendant can be ascertained with certainty, and is not in doubt until after a trial, or, in other words, where the amount to be paid is fixed by the terms of the contract, or can be readily ascertained from the information which it affords. Every such case is clearly within the policy of the attachment law, which is designed for the benefit of acknowledged creditors, and not those who may or may not turn out to be such, according to the finding of a jury. In such cases, the payment which has been promised, in a certain sense, may be said to be direct. While this view is not very satisfactory, it is more

fendant failed and refused to sell the prop-| due on the contract shall appear from the erty as agreed upon, or at all; that the plaintiff was induced to buy the same by the promise of the defendant to resell the property as agreed in the contract; that he tendered a deed to the defendant and demanded that he pay him the sum agreed to be paid, and execute his note for the deferred payments as mentioned in the contract, and to account for and pay the money provided for in said contract. It is further averred "that the highest market value of said property described in the foregoing agreement was, upon the 28th day of July, 1888, and has been ever since, and still is, the sum of $9,000, and no more; that by virtue of of defendant's failure to keep and perform the terms and conditions of said contract, and by virtue of his breach thereof, as hereinabove set forth, this plaintiff has suffered damage in the sum of $3,500." The prayer of the complaint is for judgment for "$3,500, and forcosts of suit, and for such other and further relief as to this honorable court may seem meet and proper." The attachment was founded on this complaint. The respondent defends the action of the court below in dissolving the attachment on two grounds: First, that the complaint did not state a cause of action; second, that the suit was to recover unliquidated damages, and for that reason no attachment could properly issue. The objection to the complaint is that "there is no sufficient allegation of a breach of contract; that the contract was to sell as the agent of the plaintiff, and pay over the proceeds of the sale; not to pay $3,500 damages, or any sum, in case of failure to sell," and that "plaintiff attempts to treat defendant as a purchaser, tenders a deed and demands $12,500, and alleges damages upon that theory." We give these objections in the language of counsel for the reason that we do not understand what is meant sufficiently to attempt to state their point. The complaint is one for damages for the breach of a contract, and is sufficient. The contract sued on was not one of agency for the sale of real estate simply. The defendant positively bound himself to realize to the plaintiff, out of the property, within one year, the sum of $12,500. We see no reason why he should not be held liable in damages for a breach of such a contract, as well as any other. Janin v. Browne, 59 Cal. 37, 44. As to the other point, the proper measure of damages is the difference between the actual value of the land at the end of the year and the amount the defendant bound himself to realize from it to the plaintiff. Therefore, the simple question is whether an attachment properly issued upon a complaint which upon its face showed precisely what the damages were; the affidavit in attachment showing that the defendant was indebted to the plaintiff in the sum of $3,500, upon an express contract for the direct payment of the money. There is no uncertainty appearing on the face of the proceedings as to the amount actually due. At the trial the only thing necessary to fix and determine the amount is to prove the value of the land. The amount agreed to be realized and paid over to the plaintiff is fixed by the contract. Our Code does not require that the amount v.22p.no.2-5