The record-union., 1891-02-02

Vic hOtCS, stltl TeIuTn Oh Un6 CASH pay
ment OF $1,000, all of which was rejected
and refused by the plaintiff. The prayer
OF the cross-complaint is that the notes
be cancelled and that defendants have
Judgment against the plaintiff for the
5000 paid and interest.
The water certificates and the indorse-
ments thereon are in the following form:
''(Class a 1920 certificates. Issue of
June l, 1886. Number lis. Number of
certificates, 20.)
Bear Valley Land and Water Com
pany water certificate.
'sThese twenty certificates issued by
the Bear Valley Land and Water Com
pany, corporation, to Rhodes, Mitchell
and Hopes for twenty acres are guaran-
teed by said company to entitle the
noidef hereof to receive a continuous
how OF one-seventh of an inch of water
10 each acre of land to which the same
snail be devoted or multiple thereof as is
designated on the face hereof for the six
summer months in each year for the con-
OF TINS company with the North and
South Fork bitches, respectively. The
inch mentioned herein is equivalent to a
How OF one-fiftieth of a cubic foot per
second. The holder of this certificate
may elect to accumulate the use of water
hereunder IN any one or more months of
said SIX months, the aggregate in any one
|
the whole for that year, and the holder
is also entitled to his proportion of the six
months winter water. accruing under the
contracts of the North or South Fork
bitches on which it may be used in the
proportion which this issue of certificates
ana those that may be hereafter issued
bears to the whole of such benefits.
The point OF delivery of water used un-
der this certificate shall be at the
points designated in the contracts with
the North and South Fork bitches, re-
spectively, This issue or award of water
is adopted as method of distribution
and OF the use of the same to the COM
panys stockholders in consideration of
the covenants contained in the indorse-
ment hereon; and the interest represented
by this certificate shall not become an
purtenant TO or pass by voluntary act
or by operation of law with any land
upon which the water represented may
be used, a transfer hereof shall only be
made by surrender of this certificate to
the company and the reinsurance of a new
ceruilcate and upon the signature of the
concurrent contract on the records of the
company. y. G. BURT, President.
e. a. HoLT, Secretary"
| lSeai of said company.l
Endorsement: ''fhe holder of this GER
tltlcate hereby accepts the same on the
following conditions: That this certifi-
cate shall, and is to be held subject to and
III accordance with the terms of the con-
tract signed by the holder hereof upon
Its issuance by the company
The contract mentioned in the indorse-
nent ON the certificate, 20 be signed by
the holder, was signed by the defendants
on July7, 1887, and is as follows:
know all men by these presents. that
whereas, the Bear Valley Land and Water
Company, corporation, has this day
issued to the undersigned, Rhodes,
Mitchell d Hopes, twenty certificates of
said corporation, being certificate No. lib,
IN consideration of the agreements here
mater contained, and subject to the con-
ditions hereinafter set forth and contained
| III said certificate, and the undersigned
has received and accepted said water GER
tifieates,- subject to all such agreements
and conditions.
Now, therefore, we hereby agree that
IN consideration Of therissuance Of said
water certificates to us by said corpora
ton, and in payment FOR the water which
sad certificates entitle us to receive each
year from said corporation in accordance
with the provisions of said certificates:
I'VE will, without notice or demand,
pay TO said corporation annually here
after, and within thirty days after the
first day OF January in each wear. the
sum Of $50, being 81 per year on each of
said water certificates, such payment to
be made at the office of said corporation
in the city of San Bernardino, State of
California. X
.'And if said sum of $40 be not paid to
said corporation in full, at the time and
IN the manner hereinbefore provided
then said certificate No. ll3 and all cove
nants and agreements therein contained.
and the water certificates therein referred
to, shall become and be null and void.
and all rights hereunder shall be forfeited
and shall forever cease and determine,
and the foregoing contract shall be void.
And whenever said certificate No. Il3
shall be surrendered to and cancelled by
said corporation then the foregoing con-
tract shall be void
In witness whereof, we have hereunto
set our hands and seals this 18th day of
July, 4. d. 1887.
RHODES, MITCHELL & HOPES,
BY Z. III. CoNDEE, Agent"
The court found for the plaintiff on all
the issues, and decreed a sale of the mort
gagged property in the usual form, and the
defendants appeal from the final decree.
and from an order denying their motion
for new trial.
l. The appellants contend that the find
lngs which negative the fraudulent mis-
representations charged in the answer and
croSs-comPlaint are not justified by the
evidence. 1t VIII be observed that the
ayerments are that the plaintiff made the
false and fraudulent representations by
his agent. The evidence shows that the
alleged agent was c. p. Condee. whose
authority, if he had authority, extended
no farther than to find a purchaser Of the
property at fixed price, and who, in his
testimony on the trial, denied that he
ever represented that water was piped or
conducted to or upon the land sold: or
that the right to the use of any water was
appurtenant to the land otherwise than
expressed III said water certificates; or,
that plaintiff would assign to defendants
any shares OF stock in the water company
corporation other than said water certiti-
Gates, though he may have called those
certificates water stock; or that any con-
tract for the erection of a hotel or other
buildings had been made by the plaintiff.
Such representations as were made by
Condee before the sale, were first made to
the defendant Rhodes (who was acting for
the other defendants) at q place on the
land where Condee is charged with having
falsely represented that the water was
then piped; yet, there was nothing on the
land to indicate that there was either pipe
or water anywhere upon it. The water GER
tificates. in the form above set out, were
Endorsed by the plaintiff and delivered
to the defendants agent with deed for the
land, in June IL, 1887, and received by de-
PENDANTS in July IL, 1857. 1t is admitted
that defendants knew no water had been
piped on the land as early as October,
1887, and the evidence strongly tends to
show that the defendant, Hopes, must
have known the same in July, 1887;
yet the defendants made no offer to re-
scind until December, 1855, about two
months after the commencement of this
action. There is no evidence nor pre-
tense that the plaintiff personally made
any false representation whatever.
As the defendant, Rhodes, testified that
he had been in the real estate business a
number of years, and had personally
visited and examined the land on two
occasions before he made the purchase, it