Merchs.' Nat'l Bank of San Francisco v. Carmichael

SHAW, J.

The plaintiff appeals from the judgment. The complaint states a cause of action to recover $4,126.65 upon a stated account alleged to have been made between D. W. Carmichael and the American Canon Water Company, and afterward transferred to the plaintiff. The defendant denies the making of the stated account, or of any agreement to pay the money sued for. The court made findings to the effect that no account had been stated by the said parties and that no sum was found due to the Water Company from the defendant Carmichael, and that he never agreed to pay said sum of money. Thereupon judgment was given for the defendant. It is claimed that this finding is contrary to the evidence.

Carmichael was the owner of a tract of land containing 1,126.64 acres, more or less, which he proposed to subdivide and sell to purchasers in small tracts. He desired to make some arrangement whereby water could be furnished for irrigation and domestic use on said tracts. With this in view he and said Water Company, on December 16, 1912, entered into an agreement whereby the Water Company agreed that for a sum equal to ten dollars an acre for each acre of Carmichael’s land, the area to be determined by a subsequent survey, which sum Carmichael thereby agreed to pay to said Water Company, it would execute to each of the expected buyers of tracts of said land a contract to furnish the tract bought by them with water perpetually, at the yearly charge of four dollars per acre for irrigation and one dollar a month for domestic use, the said right to be appurtenant to such tract so bought. The agreement recited that Carmichael had paid to the Water Company seven thousand dollars of the sum agreed to be paid by him as aforesaid. The second agreement was as follows:

“Sacramento, Calif. December 16, 1912.

“This is to acknowledge that American Canon Water Company, has this day received from D. W. Carmichael on ac

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count of contract-of even date herewith, for the furnishing of water on 1,126.64 acres of land on the Haggin Grant, the sum of $7,000.00, gold coin of the United States of America, as part payment of the said contract. That the balance due on said contract is the sum of $4,126.65.

“American Canon Water Company,