The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1895-02-02
AGENTS COMMISSIONS.
DECISION WHEREIN A FLOW OF
WATER WAS INVOLVED.
Tho PIasnttff Not Entitied to COMMITS
sions en- Bomethiug EAat Did
Nos Exist.

Powell against Rsynor is an action in
which Judge Shaw decided yesterday
that if defendant amends his anewer
within 20 days judgment is to GO in his
favor.
The plaintiff sued upon written con-
tract for the payment of commissions
on sale of water made by Rogers. as.
signor of plaintiff. The contracs was in
the form of q letter. asking assignor's
aid in selling water to the Rislto irrigs-
ton district. For his services in arrsng-
ing plans for delivering the water and
effecting the sale, Raynor agreed 20 pay
per cent commission on water sold to
that district, between 400 and 700 inches.
In case of eeptance plaintiff WAS to
receive the per cent, whether the sale
WAS made directly through him or not.
Under the authority thus given a con-
tract was secured indirectly from the
Rialto irrigation district, whereby it
agreed to purchase of Raynor such
amount of water as he could procure
from his land and deliver to the district,
not exceeding 45l1 inches. and 20 pay
for the water delivered Of the rate OF
5000 per inch.
The defendant succeeded in procuring
from his land flow of 100 inches of
water and delivered the same to the die
trict. but although he used proper
means, method and diligence, he was
unable to obtain any more water for de-
livery, and the fact appears to be estab-
lished that this amount ia all that can
be procured from the land. He received
payment for this amount and no more,
and he paid the agent $500. which is
$500 more than he would be owing as
commission on the water actually de.
livered.
The plaintiff claimed that he was
entitled to commission on the whole
amount OF water which the irrigation
district agreed to purchase, which would
amount to $45l5; while the defendant
claims that he is liable for com mission
only on the water actually obtained and
delivered. This difference gave ries to
the principal question in the case.
The plaintiff invoked the familiar rule
that il person employ an agent to sell
tract OF land and the agent find a
purchaser, but the sale ia not made be-
cSanO ~ sulAc Oub bhhb pal Abp
no title to the land, the agent is never
theless entitled to his commission.
Water, when not severed from land. is
species of real property. In this case
it appeared on trial. from the evidence,
that the water which was the subject of
the contract was the flow supposed to be
obtainable by means of artesian well on
the land of defendant.
The amOuQt of yyatar wc Vi
uncertain and largely coniectural. The
property which Rogers bad really been
employed to sell was the water that,
with reasonable diligence, effort end
skill, could be made to flow from the
land. 1t was estimated in the contract
at from 400 to 700 inches, mlners' meas-
urement. but turned out, in fact, to be
only $50 inches. There was no guar
anty in the contract that it should
amount TO 400 inches, nor was it ex~
pected that the defendant should pro-
cure any from any other source.
Under these circumstances the plaintiff
is not entitled to commissions on water
which WAS not actually produced, which
it appears does not exist and cannot be
delivered, and the court is of the'opin-
ion that plaintiff has already received
more than he 10 entitled to.
The evidence. in the second cause of
action. showed that there was no consid-
GRAFTON for the balance due on the ac-
count and was for com missions claimed
to be due for the sale of real property,
and therefore not valid unless the
promise was in writing. Therefore. the
defendant should be allowed to amend
his answer to conform to the proof.