Mountain Home maverick. [volume] (Mountain Home, Idaho) 1906-1911, 1910-03-10

of the defendant corporation; that
Garrett should attend to locating
said persons; procure valid assign
ments of desert land entries for
them; furnish water for said land at
$22.50 per acre, and that when
patent or title was procured to such
lands and water furnished thereon,
that if said parties did not pay for
the water rights, that Mr.. Hewitt
would do so by permitting the
amount due thereon to be considered
an offset as against his mortgage,
and that said water was to be fur
nished by a certain date or dates.
After lengthy and repeated examina-
tiOn by adverse council. / think the
record discloses that the plaintiff
maintains this version of his agree
ment very closely.
Mr.. Bell was not a party nor wit
ness to this agreement between the
plaintiff and Mr. Garrett, but he and
his friends procured a number of
water rights and apparently under the
arrangement made by Mr.. Hewitt.
that is, that Bell and his friends We're
located upon certain lands by Mr.
Garrett, and that Garrett guaranteed
the validity of the assignments and
{
for such land was issued by Garrett
to Bell and friends. but that no
money passed for such water deeds.
Bell testifies that he, himself. con-
sidered that this was in the nature
of security for Mr.. Hewitt's mort
gage. and that if the title to the
lands was good and the water had
been furnished as agreed, that he in
tended to see that the money for such
water rights was paid to Mr. Hewitt.
/ if Mr.. Hewitt's mortgage had not
been paid before such time.
/ AS against the testimony of these
two witnesses, there was submitted
the deposition of Mr.. Garrett, taken
October 2, 1909. by which Mr. Gar
rett testified that some two months
after the execution of this mortgage
here in question (January 80, 1900
that he went to Tacoma at the in
stance of Mr. Bell and went to see
Mr. Hewitt, and that Mr.. Hewitt
agreed to take certain paid-up water
rights for his sons and other relatives
and by such means wipe out the
mortgage that in pursuance of such
agreement and shortly thereafter,
certain relatives of Mr.. Hewitt, some
friends and others filed upon the
land, and the deeds were properly
executed and forwarded to Mr..
Hewitt, and the mortgage thus paid.
Mr.. Garrett thus places the time
of making this agreemen some two
months after the mortgage was ex-
ecuted, which would be not later
than some time in the month of
April. 1907. Mr.. Hewitt, however,
is not so definite. but says it was
first talked of at about the time of
the execution of the mortgage ana
at other times when Mr.. Garrett was
in Tacoma in the spring of 1907. so
that at least it would be safe to
assume that this arrangement that
water rights should be furnished Mr..
Hewitt which were to pay for the
mortgage was made IN the late winter
or early spring of 1907.
Thus. we have the difference in
the testimony between Mr.. Hewitt
and Mr.. Garrett, and must now turn
to the documentary evidence to ascer-
tain where more likely the truth is
placed Before doing so, however
let me state that the evidence shows
various paid-up water rights issued tC
friends and relatives of Mr.. Hewitt
at various dates, extending over a
period of time from January 81
19O7-the day after the mortgage
was given-until May 29, 1908, the
date of the issuance of the last one
With Mr.. Garretts testimony in
mind. as shown by his deposition and
in substance above stated, let us refer
to various letters written by Mr.
Garrett to Mr.. Hewitt, and which
were written after his agreement and
after the sale of these water rights
and which must have been writer
in the light of this agreement, as he
says he understood it. and seek tC
find if Mr.. Garrett considered the
mortgage paid or unpaid.
! quote from plaintiffs Exhibit z
letter from Mr.. Garrett to Mr.
Hewitt, under date Of June %. 1908
as follows:
You will notice by the res
Olution that all my previO
acts with respect to the first
mortgage have been approve
and ratified; and. so far as /
can now see, there can be n)
question about it, do Mt
think there could have been Il
any rate, for the reason that
you put up one hundred cents m
the dollar and the company re-
ceived benefits in proportion.
Under date of July Is, 1908. Mr.
Garrett in a letter to Mr.. Hewitt
(plaintiff's Exhibit 18) after rscit
ing that he, Mr.. Garrett, had pledged
and hypothecated his own propert.
to secure the debts of the defendan
corporation, says as follows:
Il did this with full know
ledge that if anything happened
to the company, you had a first
mortgage on every bit of its
property, and / would be act
ually S5O.OOO.OO worse off than
nothing
? Here upon July IS. 1908, Mr.
Garrett acknowledges that Mr.
J Hewitt has a first mortgage on th'
b canal system which would take pre-
cedence of the money Garrett elaine,
he had advanced. and this letter Il