The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1892-08-11
TIVE FRESNO CASES.
The Supreme Court Afirms the Jvdg-
ments in Both.
Some Interesting Points to Litigants
Involved In a Mortgage Case-A
Suit About Water.

Inc supreme Court yesterday DleQ III
Deputy Clerk Govan's Office its decision
in the case of j. w. Beall vs. S. c. Fisher
tappellant). on appeal from Fresno
County. On May II, 1890, plaintiff was
the owner of $40 acres of land situated IN
the county of Fresno, subject to mort
gage to secure his debt to the mortgage,
then amounting, principal and interest,
to about $500. At the same time the de-
PENDANT owned 1,010 acres. OF land, sit
uated in Tulare County, subject to mort
gage to secure bis debt of $1,000, on which
had then accrued about Sis interest.
On that day verbal negotiations were
commenced between plaintiff and de-
fcndant for an exchange of their lands,
and had proceeded SO far that they sup
posed they understood each other as to
the terms upon which the exchange was
to be made. About ten days thereafter
| ION May I'D they met at the Office OF L..
Il. Cory, an attorney-at-laW and Notary
Pupllc, Tor the purpose of executing the
| DEEDS and other writings necessary to
effect the exchange. Nothing of their
! previous negotiations had been reduced
| 10 writing.
Mr.. Cory drew up the papers, which
We're then executed, consisting of deed
from plaintiff to defendant Of the land, in
Fresno County, subject to the mortgage
| above mentioned, which mortgage, the
defendant, by the terms of the deed, as
sumed and agreed to pay; also, deed
! from defendant to plaintiff of defendants
land IN IuIare County, which deed con-
tanned the following: "This grant is
mace subject to a mortgage for So, ESQ
to the California Savings and Loan
Society, which the grantee assumes and
nay A leo o 10
OF defendant to plaintiff for $1,000, to
SECURE which defendant executed to
plaintiff mortgage on the land in
| Fresno County which had been conveyed
TO him by the plaintiff
The action brought was founded upon
what is alleged to have been the verbal
! agreement on May L, 1880. Plaintiff al
legged that the verbal agreement was to
the effect that the defendant was to pay
| the interest upon his mortgage on the
IuIare County land up to the date when
the deeds should be executed, and also ito
pay said plaintiff upon the day when said
| conveyance and exchange should be
made, as one of the considerations for
said exchange, the sum of $3.50, the differ
ence between $500, the amount of the
| mortgage upon plaintiffs land. aud
$1,000, the amount of the mortgage upon
the defendants land.'
Plaintiff also claimed that defendant
W do IulCDtcu W HIIlI III the sum OF go Tor
interest on the note and mortgage for
$1,000 above mentioned. It was alleged
that defendant refused to pay any Of these
several sums.
The defendant denied the alleged verbal
agreements, and alleged, in substance.
that all verbal negotiations for the ex-
change of lands were merged in the
aforementioned deeds, note and mort
gage.
The court found for plaintiff on all the
issues, and rendered Judgment in his
favor for the amount of the several sums
claimed. The defendant appealed from
the judgment and order denying his
motion Ior a new trial.
Inc supreme Court says: Appellant
contends that all prior oral negotiations
and agreements between the parties were
merged in the deeds, mortgage and
| promissory note drawn by Cory and
executed by the parties on May z, 1890,
and that the court erred in admitting in
evidence, against the defendants obIec-
tons, such prior negotiations, and this
point seems to be well taken.'' 1t then
cites Section l625 Of the Civil Code and
section 1856 of the Code of Civil Proceed
ure, and several cases, and says further
In this case the plaintiff was permitted
to testify not only TO prior negotiations,
but also to alleged prior agreements fatty
contradictory OF the terms of the deed
which he accepted from the defendant,
not for the purpose OF disputing, correct
ing or constituting the deed, but for the
purpose of compelling the defendant to
pay money which, by the plain terms OF
the deed, he (plaintitf) had assumed and
agreed to pay"
Some of the testimony in the case is
given IN the opinion, showing that the
negotiations were carried on up to the
time the deeds were drawn, and that
plaintiff accepted the defendants deed
with full knowledge of its contents and
meaning.
"As to the count for $40 interest on the
mortgage for $1,000, the evidence was not
subject to the objection above consid-
ered," reads the opinion, land, although
conflicting, was sufficient to Justify the
finding of that count.
The judgment and order should be re-
versed and new trial granted"
The opinion is by Justice Van CIief
and is concurred in by Justices Belcher
Temple, Sharpstein, Mcfarland and De
Haven.
a WATER RIGHTS CASE.
In the case of Liilis ct al. VS.. The Emf.
grant Ditch Company lrespondentsl. the
decision of the lower court was affirmed
The plaintiffs sued to prevent the ditch
company from diverting more than "a Ger.
tain quantity of water from the channel
of Cole Slough.
The opinion of the Supreme Court is
very voluminous, and sustains the lower
court in its judgment that the ditch com
paDy is entitled to the water carried in its
ditch.
ALLEGED OVBR-PAYMBNT.
Deputy Treasurer Louttit Claims S1OC
From ('aDtain ,JOllp (1oIr