Myers v. South Feather River Water Co.

Baldwin, J. delivered the opinion of the Court—Cope, J. concurring.

This case, involving the construction of a certain contract, was here before. The contract is fully set out, and will be found in 10 Cal. 580. After the return of the cause, it was tried again, and is brought up, by the plaintiff on appeal, from the judgment of the District Judge, who tried the case without a jury. The contract was to dig a ditch by plaintiff for defendant, and the question arises as to the construction of the following sections of the contract : “ For and in consideration of which, the parties of the second part agree to pay to the party of the first part, the sum of three dollars per rod for each and every rod of the above mentioned excavation, made according to the terms of this contract, at the time, place, and manner, hereinafter mentioned, viz.: they shall pay at the office of the company, at Forbestown, thirty-three and a third per cent, on the completion of each mile, in cash of its value, estimated at three dollars per rod; the remaining sixty-six and two-thirds per cent, or two dollars per rod, shall be paid in water, at thó rate of twenty-five cents per inch, delivered through an orifice under six inches of pressure anywhere along, and at, the.main ditch.

Sec. 8. It is further agreed, between the parties contracting, that the parties of the second part shall reserve the right to pay the value of the excavation or three dollars per rod in cash, and also the right to appoint such agent or agents, to manage the sale of water and other matters of the company as they, the parties of the second part, may deem best for the interest they represent.

See. 9. The parties of the second part agree to pay to the party of the first part the actual first cost of all the flumes the party of the first part may construct upon the line of the main ditch, [275]in the proportions of cash and water as before specified, for the excavation, viz.: one-third in cash, and two-thirds in water; or, at the option of the parties of the second part, the whole amount in cash—the water to be estimated, measured, and delivered, as before specified for the excavation, under a pressure of six inches.

See. 11. The parties of the second part agree to sell to the party of the first part all the water the party of the first part may desire, that may run in said ditch, at the rate of twenty-five cents per square inch, and measured as before specified, under a pressure of six inches, until the party of the first part is fully paid, according to the terms of this contract for the work herein contracted for; and the party of the first part hereby agrees and binds himself to sell no water to any person or persons for a less amount than fifty cents per square inch, measured as before specified under a pressure of six inches.