Citations
- 101 Cal. App. 781
Full opinion text
FINCH, P. J.
The plaintiffs brought this action to cancel a deed purporting to convey to the defendant city the canal, water rights and other property of the McNally Ditch Company, a mutual water company. The interveners alleged the same facts and prayed for the same relief as the plaintiffs. The defendant city, which will be referred to as the defendant and respondent, entered into a compromise agreement with the plaintiffs and all of the interveners, except Katherine Francisco, by which it acquired their lands and water stock. The defendant filed answers to . the complaint and the complaint in intervention, and also filed a cross-complaint against Mrs. Francisco. The cross-complaint contains two counts. The first count stated or attempted to state a cause of action for specific performance. The second stated a cause of action in eminent domain. The court found that the deed sought to be canceled is invalid. The second cause of action stated in the cross-complaint seems not to have been tried and need not be further noticed. Judgment was entered in favor of the cross-complainant city requiring Mrs. Francisco to convey to it the lands described in the cross-complaint and 61 shares of the capital stock of the McNally Ditch Company. She has appealed from the judgment. The court found the allegations of the cross-complaint to be true. Such allegations are in substance as follows:
The cross-defendant owns the lands described in the cross-complaint and 61 shares of the capital stock of the company. The lands are entitled to receive water from the company for the irrigation thereof. On and prior to August 4, 1924, all of the plaintiffs and interveners owned land within the service area of the ditch and shares of the capital stock of the company and such “lands and shares of stock . . . constituted all of the farm lands served by the said McNally Ditch and all of the shares of stock of the said McNally Ditch Company, owned and held in connection with farm lands, which had not then been acquired by the said defendant, ... or in trust for it.” Prior to the time mentioned all of the interveners “had authorized and empowered W. W. Watterson and M. Q. Waiter son, . . . and each of them, to act as their agents or agent in negotiating for the sale to said defendant ... of their several lands and shares of stock, . . . and said intervener, Katherine Francisco, had authorized and empowered her said agents, and each of them, to agree on her behalf to sell her aforesaid lands and shares of stock to the said defendant . . . for the sum of $18,000.” On the day stated, the interveners, “acting by and through their said agent M. Q. Watterson, entered into and delivered to said defendant ... an agreement in writing, whereby they agreed to sell to the said defendant ... all of said lands and shares of stock of the said interveners for the aggregate sum of $206,450, and that at the time of the making of said agreement, it was understood between the said M. Q. Watterson and representatives of the said defendant . . . that $18,000 of said aggregate sum of $206,450 would be paid to and received by the intervener, Katherine Francisco, as the purchase price of her said lands and shares of stock.” It was understood at that time by such agent, M. Q. Watterson, and the defendant that the defendant would not purchase any of the interveners’ lands or stock unless it was able to purchase all of the lands and stock of all the plaintiffs and interveners. In reliance upon such agreement, the defendant, on August 5, 1924, entered into an agreement with the plaintiffs to purchase their lands and stock for the sum of $114,000. The defendant would not have agreed to purchase the plaintiffs’ lands and stock if it had not believed that Mrs. Francisco would perform her agreement to sell her lands and stock to the defendant for $18,000. Prior to any notice or intimation from Mrs. Francisco that she would not perform her agreement, the defendant paid to the plaintiffs the full purchase price of $114,000 for their lands and shares of stock “and paid in escrow, for the benefit of all of the interveners, in proportion to their respective interests, the aforesaid sum of $206,450.” On or about December 26, 1924, Mrs. Francisco, “through her said agent, W. W. Watterson, notified and advised the said defendant that she refused to perform her said agreement to sell and convey to said defendant . . . her said lands and shares of stock for the said sum of $18,000, or for any sum less than $24,000.” The agreement of August 4, 1924, “is and was at all times herein mentioned just and reasonable as to said intervener, Katherine Francisco,” and the “agreed purchase price of $18,000 is and was at all times herein mentioned, an adequate consideration for the, transfer an