Wolfskill v. Douglas

[398]

VAN DYKE, J.—

This is an appeal from an order denying defendant’s motion for a new trial. A separate appeal from the judgment was considered by this court, and the judgment affirmed, February 7, 1900.

The first point made by the appellant is that the complaint states no cause of action; but in the opinion on affirmance of the judgment it is held that the complaint does state a cause of action sufficient to support the judgment.

James Moore, in his lifetime, was the owner of the “ Moore Ditch,” in Yolo County, and in his will devised the same in equal shares to his three children, R. E. Moore, and the wife of the plaintiff and the wife of the defendant herein, with a life interest in the revenues of said ditch to Mrs. Moore, later Mrs. Black. At the time of Moore’s death the ditch water rights were being litigated, and certain expenses had accrued, which the court ordered paid. Thereupon the plaintiff, the defendant, and said-R. E. Moore entered into an agreement by .which they mutually agreed to advance the sum of four hundred dollars each to pay these expenses, and that the same should be charged in the account of said Moore as manager of said ditch, and if in the settlement of said account the expenses so advanced by plaintiff, defendant, and Moore should be allowed as proper charges against the revenue of said ditch, the same should be refunded. In pursuance of this agreement, each advanced four hundred dollars, which was used in the payment of said court expenses; and in January, 1894, the said account was settled and allowed by the superior court of Yolo County, and the charges so paid by plaintiff, defendant, and Moore were allowed as proper charges against the revenues of said ditch, and the funds theretofore collected by defendant from said ditch revenues then became available for the payment of the debt herein sued on.

The appellant contends that the evidence does not sustain the finding of the court that the defendant collected from the revenues of said ditch the funds with which to repay the plaintiff for the advances made, or that such funds ever came into the defendant’s hands for such purpose. Moore testifies, “I know, according to my accounts, it was paid. I say he received it from the ditch revenues ”; and the defendant, Douglas, was Moore’s agent. We think the evidence sufficient to support the finding. But the appellant says that it is alleged in the complaint that said Mary A. Black refunded and paid