Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 12 Cal. 403 at 408.
Appeal from the Fifth District, County of Calaveras.
This was an action of ejectment to recover the possession of a certain ditch for the conveyance of water for mining purposes.
The complaint sets out the title of plaintiffs, and avers " that the defendants, the Table Mountain Water Company and A. B. Laforge, well knowing the premises, and well knowing the plaintiffs were the owners of such property, and entitled to the possession and use thereof as aforesaid, have unlawfully, wrongfully, and in violation of the rights of the plaintiffs herein, at all times since the said fifteenth day of March, A. D. 1858, had the possession thereof, and ever since said day wrongfully and unlawfully detained possession of the same from these plaintiffs; and that said defendants do now wrongfully and unlawfully detain the possession," etc.
This allegation is attempted to be traversed in the answer of the Table Mountain Water Company by the following:
" The said defendants, the Table Mountain Water Company, for answer to the plaintiffs' complaint denies that the said Company has unlawfully, wrongfully, and in violation of plaintiffs' rights, had the possession of the certain ditch, canal or flume described in said plaintiffs' complaint, and denies that they unlawfully and wrongfully detain the possession of the same."
The cause was tried in the Court below without a jury, and by the findings of the Court it appears that on the twelfth day of February, 1857, a judgment of foreclosure of mortgage of the premises, in favor of E. A. Rowe v. The Table Mountain Water Company, was duly rendered in the District Court of Calveras county, and that subsequent the property was sold under the decree; that at such sale, Bowman and plaintiff Hughes became the purchasers, and a deed was duly made by the Sheriff conveying to them the premises; that subsequently Bowman sold and conveyed his interest to the plaintiff Burke.
On the thirty-first of October, 1856, the Table Mountain Water Company leased the premises to the defendant Laforge for the term of five years, and under this lease he entered into possession. On the sixteenth of March, 1858, and before the commencement of this suit, Laforge, by a written contract with the Company, surrendered to them the possession of the ditch. This action was commenced on the twelfth of April, 1858, and the Court finds that plaintiffs were then the owners, and entitled to the possession of the ditch.
On the day of trial, plaintiffs served upon the defendants notice to produce on trial " the written agreement canceling the lease alleged to have been made between A. B. Laforge and the Table Mountain Water Company--said agreement having been made by A. B. Laforge and the Table Mountain Water Company--or parol evidence will be given of its contents." The lease was signed by the individual members of the company, and the agreement surrendering possession is alleged was made to them. The defendants did not produce the agreement, and parol evidence was admitted on trial of its contents. Plaintiffs had judgment against the Table Mountain Water Company only, no judgment being taken against Laforge. All of the defendants appealed to this Court.
COUNSEL:
I. The Court below erred in overruling the motion for a nonsuit, because at the time said motion was overruled, there was no evidence showing the Table Mountain Water Company was, or had been, in the possession of the property sued for, andhad shown as facts entitling them to a recovery against A. B. Laforge.
II. The Court below erred in admitting parol evidence as to the contents of a certain written paper in relation to the surrender or transfer of a certain lease, because the notice to produce the paper did not describe the paper, the contents of which were proved, but a paper signed by other and different parties.
III. The Court below erred in refusing to strike out and exclude the evidence of James Brady in relation to the contents of the within instrument, in regard to which he testified, for the following reasons: First. The instrument about which he testified did not express any consideration on its face, and was therefore void under the Statute of Frauds; hence no sufficient foundation had been laid for the introduction of secondary evidence.
IV. The evidence does not justify the finding of facts by the Court.
Robinson & Beatty and Hardy & Vaughn, for Appellants.
Latham & Sunderland, for Respondent.
The only questions are: First. Does the finding of the Court support the judgment? And, Second. Was there error in admitting parol evidence of the contents of the transfer or surrender of the lease?
1. The finding is completeupon all points--that the corporation was the owner of the property in dispute; mortgaged it; that the mortgage was foreclosed, sold and deeded by the Sheriff; that plaintiffs succeeded to the right of the purchaser at Sheriff's sale, and that the company, at the time of bringing suit and at the trial, was in possession. The defendant, the Table Mountain Water Company, being defendant in the foreclosure suit, and in possession of the property at the commencement of the ejectment suit, the proceedings being regular, there could be no defense by the company.
2. There was no error in admitting the parol evidence.
I. The evidence was against the corporation, and they do not now complain.
II. Laforge cannot complain, because there is no judgment against him.
III. The notice in writing was sufficient; and if not, the verbal notice on the trial was. Defendants made no showing why they could not produce the papers.
It is said, however, that the paper is shown to have been void for want of a consideration expressed therein. The witness does not pretend to say there was no consideration expressed in the agreement; he says Laforge was to be paid for his improvements, but that was not in the paper. This answer was not in response to a question as to the contents of the paper, nor does it purport to be.
Again: the construction of the paper must be taken most strongly against the defendants, they having refused to produce the paper. Defendants' counsel had it in the morning of the day of trial; the presumption is, it was still in his possession in the Court-house. Such presumption becomes conclusive when the same attorney refuses or declines to show that it has passed from his possession, or is then at his office, or at a distance. The statute, as also the rules of evidence prior to the passage of the law, require only reasonable notice. What is reasonable notice, the Judge who tries the case below can better determine than this Court.
IV. The answer of the company does not deny that they are in possession; and as between plaintiffs and the company, there was no issue to which Brady's testimony could be pertinent. The Court found the company in possession, from the pleadings themselves, and not from the evidence of the contents of the paper.
JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., and Field, J., concurring.
OPINION
BALDWIN, Judge
On re-hearing in this case, the following opinion was rendered by Baldwin, J.--Terry, C. J., and Field, J., concurring.
On petition for a re-hearing.
The finding which is objected to is that Laforge was not in possession. To prove that he was not, parol evidence of the contents of a paper purporting to be an agreement of a cancellation of a lease was offered and admitted. It was objected that no consideration was shown for this agreement. But as a verdict could not be found against Laforge, unless he was in possession, we do not see that this proof was inadmissible, for the agreement was evidence of a surrender of a former possession, whether there was a consideration for it or not. The finding was, therefore, right. At least, Laforge cannot complain. Judgment is for him. The reason given for the conclusion is not res judicata as to him, so as to bind him in any future proceeding. Though the Court decided he had no title and no possession, and therefore he was improperly joined as a defendant, yet it also decided that the plaintiff had no claim on him, and could recover nothing. We do not understand that the reasons given for a finding are judgments. The point decided is the thing fixed by the judgment, but the reasons are not. The only point adjudged is the fact that Laforge is not in possession, and that result was reached by testimony proper for that purpose. His right to the possession, if he has any, is not concluded by this judgment and finding. But there was evidence enough for the Court below to base its action on--that he was not, in fact, in possession; and this is the only fact really decided. See Garner v. Marshall, 9 Cal. 270.
Laforge's right is just as good, therefore, now, as it was before the trial; the effect of the judgment being to determine the fact that he was not in actual possession; and, according to the case just cited, actual possession was necessary in order to sustain an action of ejectment against him.
We think, therefore, that conceding everything to the argument of the counsel--which seems to us to be more plausible than sound--there is no substantial error in the opinion which the petition reviews.
The petition is denied.