Schimmel v. Martin

LENNON J.

The above-entitled actions were separately instituted in the court below to recover from defendant damages for an alleged breach of a contract to furnish water to the respective lands of the plaintiffs. The cases come here on appeal upon separate records but the appeals have been submitted upon a single set of briefs and will, therefore, be considered and decided as one.

The undisputed facts are these: On the fourteenth day of February, 1918, a written contract was entered into between one O. K. Uzzell and A. J. Martin, defendant herein, which contract was in the words and figures as follows:

“This agreement, entered into between A. J. Martin, of Baldwin Park, Los Angeles County, California, the party of the first part, and O. K. Uzzell, of Meriden Ave., Sonth Pasadena, California, the party of the second part,

“Witnesseth: That A. J. Martin is the owner of 150 inches of water, the capacity of his pumping plant, in Baldwin Park, California, and he agrees to let O. K. Uzzell have this water continuously at 1%^ per inch, to be applied on the 20 acres of land owned by O. E. Uzzell, and which adjoins the ranch of A. J. Martin; and O. K Uzzell is to pay monthly for the water he uses. In ease O. E. Uzzell fails to pay for the use of water, the party of the first part has the privilege of cutting off the supply, but in case party of the second part fails to pay but does pay later, he shall then have the water supplied to him as in the beginning on the same terms, by paying up all bills for the use of water. And further to secure party of the first part, the party of

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the second part agrees that A. J. Martin shall have a lien on the crops grown on the said 20' acres until he pays said bills as security for water furnished. The contract agreement shall be continuous under said terms. Said water is to be furnished to O. K. Uzzell whenever notice is given to A. J. Martin by party in charge of O. K. Uzzell’s ranch.

“Party of the second part to give 5 days notice when water is wanted.

“ (Signed) A. J. Martin, “0. K. Uzzell.”

On January 14, 1920, Uzzell transferred his interest in said contract to James Schimmel and Eva Anderson jointly, and on June 3, 1920, Eva Anderson assigned her interest in said contract to H. 0. Anderson. In the meantime the title to the lands mentioned in said contract became vested in said James Schimmel and H. 0. Anderson, plaintiffs herein, each becoming owner of ten acres thereof. Prior to April 30, 1921, plaintiffs and their predecessors in interest received water from defendant’s pumping plant for irrigating said property, and paid defendant in full therefor.