The record-union., 1892-05-25
THEY WERE NOT RESPONSIBLE.
Attempt to Make the Railroad Com
pany Pay for Dead Sheep.
A Tehama County Case Reversed by
the Supreme Court-Decision in
a Fresno Case.

The Supreme Court yesterday filed a
decision in Deputy Clerk Govan's Office
in the case of Mccoy VS.. The Southern
Pacific Company {appellant).
The complaint alleged that McCoy's
| sheep were lawfully grazing in a certain
| field through which the road of defend
ant runs, and that by reason of the fail
ure of defendant to construct and main
tain sufficient fence the sheep strayed
upon the road and were killed by passing
cars.
The evidence upon the trial showed
that the railroad company constructed a
sufficient fence along the particular piece
of road through the field in question, but
prior to the time of plaintiffs complaint
the owners of the field, for their own con-
yenience in driving in and out of it,
made and left an opening in the fence by
removing panel therefrom, and the
fence was in this condition when the
sheep were put in the field. 1t was
through this breach made in the fence
that the sheep strayed upon the track.
! Upon the trial it. was claimed by the
| plaintiff that the panel was taken out
with the consent of defendant, and that
the detenda Mt agreed to replace the same
fendant insists that it gave no such con-
! sent.
| The plaintiff recovered Judgment in the
! Superior Court, the defendant appealed,
| and the case was remanded for new
| trial
| Chief Justice Beatty in his concurring
opinion says: The evidence in the case
very clearly shows that the defendant
| had fully performed its duty by the erec-
! tiOn of a fence, and that Boyd BrOS.) the
owners OF the land removed a panel for
their own convenience. To counteract
| the effect Of this proof an attempt was
made to show that defendant had agreed
| to close the gap by putting in Il gate. But
in my opinion there was no evidence to
justify finding that the defendant ever
made any such agreement. There was
! evidence that DAILY, section boss, prom
! lsed to put in gate, but no evidence that
| he had any authority to make such agree
ment in behalf of the defendant. No
! actual authority was shown, nor any cir
/ cumstance from which an actual author
! ity can be inferred, and his oStenSible
authority to bind the defendant did not
! extend to matter as to which the obli-
! CATION rested exclusively upon the own
/ ers of the land"
Justice Mcfarland said, in concurring:
''If the doctrine Of the judgment Of the
lower court were to prevail, then rail-
! road company could never, with safety,
| give to any adjoining landowner the ac-
commOdatiOn that was given to the
| Boyds."
FRESNO CASE AFFIRMED.
In the case of T. G. Yancy VS.. Peter
! Morton appellant. This was an action
/ by material men to foreclose a lien for
material furnished in the erection of a
building. The defendant appealed from
| the judgment and order denying his mo-
| ton for new trial.
Poore and Anton, as original contract
ors, agreed to erect a building for de-
fendant for the sum OF 81, 700. Prior to
the completion Of the contract they aban
doned the work, and plaintiff brought
value of material furnished, claiming
that the contract was absolutely void, be-
| cause:
! Firsu-Twenty-fiv per cent. of the con-
| tract price was not to be retained for
| Ihirtyfive days after the completion of
! the building.
! Second-Because the contract contained
no description Of the property.
! Third-Because the drawings were
made part of the contract and werel not
attached to and filed with it in the Re-
! corder's office.
Appellant also complains that the con-
tractors were not joined as co-defendants.
while they were proper parties to the
action" says the Supreme Court, ''it
does not appear that they were necessary
| parties, and if the defendant desired to
! have them joined as co-defendants he
should have made application to the court
for such an order.n
The court, after going over the grounds
at great length, declared the Judgment
and order OF the lower court affirmed.