Western Canal Co. v. McRae

THE COURT. This is an action brought to recover the sum of $1232 alleged to be due for irrigation water furnished under a contract between the parties. The court is also asked to enforce a lien for the payment of said sum against the lands of defendant. Defendant filed a counterclaim for $3,500, damages, arising out of fraudulent representations made in respect to the sale of stock by plaintiff company to him. The allegations of this counterclaim are substantially the same as those of the complaint in the case of Goodspeed et al. v. Great Western Power Co. et al., Civil No. 6011, and decided by this court on the 8th day of June, 1939 (33 Cal. App. (2d) 245 [91 Pac. (2d) 623, 92 Pac. (2d) 410]). Reference is made to the latter case for a full statement of such allegations. The same observation also is made in respect to the findings in this case. The trial court, as in the Good-speed case, found against plaintiff canal company on the issue of fraud, refused to impose the lien, but gave credit to plaintiff, in fixing the amount of damages, for the full amount of its demand for water furnished to defendant. The amount of the judgment is $1647.22, and plaintiff appeals from such judgment.

Plaintiff also appeals from “that part and portion of said judgment in which the trial court found, determined and adjudged that plaintiff was not entitled to recover interest from defendants on interest payments, from the respective dates of payment, paid by plaintiff and received by defendants on account of the purported purchase of stock of defendant Western Canal Company”.

The question of the right of defendant to recover upon his counterclaim, upon substantially the same record, and his right to interest and damages, involved in his appeal, are fully disposed of in the Goodspeed ease, which is referred to [421]as authority for a similar ruling here. Only points not adjudicated in the latter case will receive further attention.

The contract for water service was executed on March 3, 1925. The agreement to purchase stock in plaintiff company was also executed on that date. In the Goodspeed case, where the evidence was substantially the same, we held that such contracts, under the provisions of section 1642 of the Civil Code, are to be construed together as one transaction. We also held that such a stock purchase agreement was obtained through fraud on .the part of this plaintiff, and was therefore void.

It is contended by appellant company that the trial court erred in refusing to impose a lien upon defendant’s lands. It relies upon the following portion of the water service contract in evidence: