Ginocchio v. Amador Canal & Mining Co.
Before: Searls
Synopsis
Assignment—Thing in Action—Security—Power of Assignee to Sue.—If a contract is transferred by an assignment absolute in form, though as security only for a debt less in amount than the sum due or to become due upon the instrument assigned, the assignee is not limited in an action upon the contract to recover the sum due him from the assignor, but may recover the whole amount due thereon, being in turn responsible to his assignor for any excess.
Id.—Water Right.—The defendant and the plaintiff’s assignor, a mining company, entered into a contract under which the former agreed to furnish water to the latter for the purpose of working a quartz mill and mine, through a ditch to be constructed by the mining company. The latter was to bo repaid the expense of building the ditch m water, and in case it abandoned the working of the mill and mine before the payment was complete, then it was to be paid out of the net proceeds of water run through and sold from the ditch. The company completed the ditch and delivered it to the defendant, but before it was repaid the expense of building, abandoned its mining operations. Held, that the ditch and water supply were not appurtenant to the mill or mine, and that the rights of the mining company under the contract might be assigned independently of the mill and mining property.
Searls, C. This is an action brought by Alfonso Ginocchio, as assignee, against the Amador Canal and Mining Company, upon an instrument in writing, to recover the sum of $5,942.72, with interest, in which action Bright and ¡Newman intervened.
The instrument in suit was an agreement dated December 31, 1878, between the Amador Canal and Mining Company, a corporation, and the Moore Mining Company, a mining copartnership, by the terms of which the Amador Company agreed to furnish water to the mining company for five years, to run a quartz mill, at a fixed price per inch, to be supplied through a ditch to be constructed by the mining company. The latter was to be paid the expense of building the ditch by the Amador Company in water, and in case working the quartz mine was abandoned before such payment was received, the Amador Company was to pay the expense of building the ditch in cash, from the net proceeds of water run though and sold from such ditch. The ditch was constructed at an expense of $7,713.65, and delivered to the Amador Company on or about February 1, 1879.
About March 25, 1879, the members of the mining company organized a .corporation under the name of the Moore Mining Company, to which they delivered possession of their mill and quartz mine, and verbally assigned their interest in the water contract.
[495]The interest of the mining company in the mines seems to have been only that of the holder of a bond for the conveyance thereof. The corporation worked the mine and received water on the contract of the mining company until September, 1879, when they abandoned operations, and on the 2d day of September, 1879, assigned the water contract .to the plaintiff herein, and at the same date the mining copartnership, by C. J. Garland, one of its members, assigned said water contract to plaintiff, of all of which the Amador Company had notice.
On the 3d day of May, 1881, all of the copartners of the Moore Mining Company executed a further assignment of the water contract to plaintiff, and ratified and confirmed the act of C. J. Garland in the assignment of September 2, 1879.
Defendant caused fifty dollars to be paid to plaintiff on account of the contract, February 28, 1881.
It is conceded that defendant had received in net profits from the sale of water from the ditch in question a sum sufficient to satisfy the balance due on the contract.
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