Questo v. Dorado

PEEK, J. By their complaint plaintiffs sought to recover from defendant the rent due under the terms of a lease between the parties. Defendant’s cross-complaint alleged plaintiffs’ breach of the contract by failing to make available to defendant water for the irrigation of a tomato crop as provided in said lease. The trial court determined that from the damages suffered by defendant there should be deducted the rent found to be due and owing to plaintiffs leaving a net amount in favor of defendant in the sum of $5,025, and judgment was entered accordingly. Plaintiffs’ motion for a new trial was denied and this appeal followed. It is plaintiffs’ contention on appéal that the court erred in excluding certain testimony and that certain findings are inconsistent, insufficient and not supported by the evidence.

The record shows that the Plain View Irrigation District was formed to utilize water from the Mendota Canal, if and when the same was available. Included within the district was certain land leased by plaintiffs, who in turn had subleased the same to defendant. The land was bounded on the south by Schulte Road. An irrigation ditch extended from the main canal north to the southwest corner of the property, thence along Schulte Road to a siphon which passed under the road to the property.

Although water was to be made available for irrigation by plaintiffs to- defendant beginning March 15, 1952, and water was not available until May 3, 1952, defendant’s claim for damage is not predicated upon this delay in the supplying of water, but rather upon plaintiffs’ failure to supply any water between July 7 and July 24.

[334]Plaintiffs’ first contention relates to this claim of defendant. It is their contention that the court erred in striking certain testimony of plaintiff Questo concerning two conversations with defendant during July. Their argument is that in the statements attributed to defendant he admitted the good condition and progress of his crop during the month of July and at a time when he alleged no water was available, and his statements therefore were admissible under section 1870, subdivisions 2 and 3, of the Code of Civil Procedure.

We find no error in either ruling by the court. The testimony in each instance related to a conversation among the defendant, his son and the plaintiff Questo. Plaintiff’s testimony was indefinite, and since no direct statement was shown to have been made by defendant, the testimony in question did not come within the provisions of said section of the Code of Civil Procedure or any exception thereto. (See Adkins v. Brett, 184 Cal. 252, 255 [193 P. 251].) Furthermore, while plaintiff states that such conversations took place between July 15 and the first of the following month, there was testimony that they occurred prior to the damage defendant alleged he had suffered.