Fresno Canal & Irrigation Co. v. Warner

Belcher, C. C. — This is an action to recover the sum of five hundred dollars alleged to be due the plaintiff for conducting water, sufficient for irrigation purposes, upon the lands of defendant, under a contract made between the parties. The complaint alleged that the plaintiff was a corporation, incorporated under the laws of this state, and engaged in the business of diverting water from Kings River, and supplying therewith, for irrigation and other useful purposes, the people of Fresno County. The answer denied that the plaintiff was a corporation, and also denied the making of the contract alleged, or any contract, for conducting water upon his land.

The case was tried by a jury, and the verdict and judgment were in favor of plaintiff. The defendant moved for a new trial, and now appeals from the judgment and order denying his motion.

It appears from the record that, at the commencement of the trial, counsel for plaintiff offered in evidence a •copy, certified by the secretary of state, of the plaintiff’s articles of incorporation. Counsel for defendant objected to the offered evidence, upon the ground that it purported to be a copy of a copy, and was irrelevant, immaterial, and incompetent. The court overruled the objection, and thereupon the paper was handed to the clerk of the court, and by him marked “Plaintiff’s exhibit A.” It w.as, however, never read to the jury, .and the reading of it was neither waived nor admitted.

[381]M. J. Church was then called as a witness, and testified that he was “ the M. J. Church named in the articles of incorporation of plaintiff as one of the corporators of said plaintiff, and that he owned all but five shares of the capital stock of plaintiff, and that he had been its president ever since its organization, except about three years, and its superintendent ever since its organization.” No other or further evidence as to whether plaintiff was a corporation or not was offered during the trial of the cause.

Upon the other questions involved, considerable evidence was introduced by both sides, and at its conclusion counsel argued the case to the jury. The court then gave its instructions, and counsel for plaintiff asked that the jury be permitted to take with them, upon retiring for deliberation, the certified copy of plaintiff’s articles of incorporation. This was refused, and thereupon counsel asked that the jury be instructed, in addition to their general verdict, to answer the question: “Was and is the plaintiff a corporation, as alleged in the complaint?” This last request was granted, against the objection and exception of defendant. The jury then retired, and in due time returned with a general verdict in favor of plaintiff, and an answer to the question submitted as follows: “We, the jury, find that it was and is so a corporation.”