Henry v. City of Sacramento

McFarland, J. A demurrer to the complaint was sustained, with leave to amend; and plaintiff declining to amend, judgment was rendered for defendant. From this judgment plaintiff appeals.

It is alleged in the complaint that on September 11, 1893, one A. L. Fish entered into a certain contract set forth in the complaint, with the defendant, the city of Sacramento; that thereafter on March 1, 1894, the said Fish duly assigned said contract to J. H. Henry and A. Abbott; that thereafter the said Abbott duly assigned all his interest in the contract to the said J. H. Henry; and that on November 27, 1894, the said J. H. Henry duly assigned the said contract to W. E. Henry, who is the plaintiff herein and brought this suit on June 27, 1895. The demurrer states the general ground that the complaint does not state facts sufficient to constitute a cause of action, and also presents the point that the alleged contract was personal in its nature and not assignable. This second point need not be here considered; for, in our opinion, the complaint in other respects does not state facts sufficient to constitute a cause of action.

The contract is quite lengthy, and need not be here set forth in detail. It is sufficient to say generally that, in the event of a certain contingency happening, the said Fish was to supply the defendant for city purposes water, in quality “ clear, sweet, and wholesome,” and “ suitable for drinking water and domestic uses,” and in quantity not less than “one thousand million gallons per annum”; and the defendant was to pay for said water at a certain rate for a certain period mentioned, the said [630]Fish to furnish a water main and connect it with the water-pipe system of the city then existing. The water was to be procured by said Fish by means of wells to be dug by him near said city, provided he should be able by that means to discover and develop water of the quality and in the quantity specified in the contract. At the time of the execution of the contract no such water had been developed, and whether or not it could be so developed was problematical. It was provided that, “ within sixty days of the signing of this contract, the party of the second part (Fish) must begin in good faith such prospecting and investigations as may be necessary to determine whether an adequate and proper supply of water exists at the proposed location of his plant and well, and he shall prosecute such investigations in good faith, and with reasonable dispatch, so as to fully determine within six months after the signing of the contract whether such supply can be obtained.” It was further provided, that if such water could not be developed as aforesaid, then both parties should be re. leased from all liability upon the contract. It was further provided that said Fish should deposit with the defendant a certified check in the sum of ten thousand dollars, as security that he would faithfully endeavor during said six months to determine whether water in quantity and quality as aforesaid could be developed; and that, if it should appear that such supply of water could not be developed, then the check should be returned to said Fish. If, however, such supply should be developed within six months, then certain other covenants of the parties were to be complied with.