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(67 Cal. 497)
REYNoLDs v. SNow. (No. 9,924.)

Filed September 25, 1885.

1. ELECTION BALLOTs, FoRM AND SIZE OF. Ballots which do not conform to the requirements of the statute as to form and size and in other minor respects cannot be counted. Pol. Code Cal. § 1191. 2. APPEAL—FINDINGs—CONFLICT OF EVIDENCE. Appellate courts ordinarily decline to interfere upon a conflict of evidence, because the trial court has an advantage over the appellate court in that it can both hear the witness and observe his deportment in testifying before it. But where the findings of the trial court are entirely based on documentary evidence, such as ballots cast at an election, and of which photographic copies are before the appellate court, the rule is different; for the reason of the rule fails, and the rule fails with it.

3. FINDINGS-EVIDENCE.
Findings held unsustained by the evidence.

Commissioners’ decision. Department 2. Appeal from superior court, Stanislaus county. Schell & Bond, for appellant. Wright & Hazen, for respondent. Foot'E, C. A contest for the office of supervisor of district No. 1 of Stanislaus county. The bill of exceptions in the transcript should be considered by this court. The objections made to it by the respondent are not well taken. It appears by the official returns of the various election boards of the district, as canvassed by the board of supervisors of the county, that the appellant, William Snow, received 324, and the respondent, B. F. Reynolds, 323, votes. To the former the board awarded the certificate of election and the office in dispute. The latter contested his right thereto, and prevailed in the contest. From that judgment Snow appealed. The court, upon a recount of the ballots, discovered that the contestant's Exhibit No. 8 was one having the name of “Wm. Snow” printed on it, and that of the office for which he was a candidate; but the paper on which it was printed was, when voted, only about eight and one-half inches in length, and did not in that and some other minor respects conform to section 1191 of the Political Code, and ought not to be counted for Snow, as it had been. This conclusion of the court was correct. That tribunal substantially found, also, that an election board had counted for Snow two ballots called “Plaintiff's Exhibits 2 and 3;” that on them, and in the same line, were printed the following words and figures, viz.: “23. Supervisor, District No. 1, B. F. Reynolds;” that the words “Supervisor, District No. 1, B. F. Reynolds,” had been distinctly and completely erased by several lead pencil marks being drawn completely through said words, and each of them, and that upon one of said ballots had been written the words “Wm. Snow,” and upon the other the word “Snow,” and that these words were written opposite said figures 23, line, and erasure; that the words erased were still discernible and distinguishable, and that the voter intended by the erasure to strike from the ballots, and each of them, the name of the office of supervisor of said county, in and for said district, and that no such office remained designated upon said ballots, and that neither the board of election nor the court could ascertain that the voters intended to vote for said “Snow” and “Wm. Snow,” respectively, for said office, and that it was not the intention of said voters to vote for any person for said office. To this finding, upon a thorough inspection of those ballots, we cannot agree. In a case where there was a conflict in the evidence, in the sense that witnesses in the presence of the court had sworn contrary to each other as to facts, we should not feel warranted in entering our dissent; but where, as in this case, the ballots themselves were, on that point, the only evidence before the court, and as photographic copies of them are before us, it is clear that there was no such conflict in the evidence as should prevent us from exercising a judgment contrary to that of the learned judge below. The reason why a court of appeal declines, ordinarily, to interfere upon a conflict of evidence is because the trial court has an advantage over the former, in that it can both hear the witness and observe his deportment when before it and delivering his testimony. In the present instance the reason fails, and with it the rule of action. The persons writing “Snow” and “Wm. Snow” on Exhibits 2 and 3 intended to vote for William Snow for supervisor of district No. 1, Stanislaus county, and the board of election were right when they counted those ballots for him for said office. It became plain from an inspection of another of the ballots by the court that the board of election had erroneously counted for Reynolds one ballot which was, on its face, unmistakably cast for Snow, and thereupon it was properly counted for Snow. The action of that tribunal in taking from Snow a vote upon evidence showing that Jarvis Whitehead, not being a legal voter, had voted for him, in supervisor district No. 1, Stanislaus county, will not be reviewed, as the evidence was conflicting, in the proper sense of that term. The court found, further, that B. F. Reynolds received for the office in dispute 322 and William Snow 321 legal votes. From the foregoing it appears that the finding should have been that B. F. Reynolds received 322 and William Snow 323 votes for the same. The judgment should be reversed and cause remanded.

We concur: SEARLs, C.; BELCHER, C. C. BY THE Court. For the reasons given in the foregoing opinion the judgment is reversed and cause remanded.

(67 Cal. 493)

GINOCCHIO v. AMADoR CANAL & MIN. Co. and others, Intervenors. - (No. 9,538.)

Filed Scptember 25, 1885.

1. CIIOSE IN ACTION.—Assign MENT OF SUIT ON. The assignee of a chose in action may sue thereon and recover the whole amount due thereon, and the fact that the assignment was merely as security for a less debt than the amount sued for will not vary the measure of recovery; for such assignee, on recovery of the whole amount due, will be responsible to his assignor for any excess recovered over the amount due him.

2. SAME-CONSTRUCTION OF INSTRUMENT SUED ON. Instrument sued on construed, and held to be an assignable contract, and properly assigned.

Commissioners’ decision. Department 2. Appeal from superior court, Amador county. Jas. Wheeler and Eagon & Armstrong, for appellant. Jas. F. Farley and A. C. Adams, for respondent. SEARLs, C. This is an action brought by Alfonso Ginocchio, as assignee, against the Amador Canal & Mining Company, upon an instrument in writing, to recover the sum of $5,942.72, with interest, in which action Bright and Newman intervened. The instrument in suit was an agreement, dated December 31, 1878, between the Amador Canal & Mining Company, a corporation, and the Moore Mining Company, a mining copartnership, by the terms of which the Amador Company agreed to furnish water to the mining company for five years, to run a quartz-mill, at a fixed price per inch, to be supplied through a ditch to be constructed by the mining company. The latter was to be paid the expense of building the ditch by the Amador Company in water, and in case working the quartz mine was abandoned before such payment was received, the Amador Company was to pay the expense of building the ditch in cash, from the net proceeds of water run through and sold from such ditch. The ditch was constructed at an expense of $7,713.65, and delivered to the Amador Company on or about February 1, 1879. About March 25, 1879, the members of the mining company organized a corporation under the name of the “Moore Mining Company,” to which they delivered possession of their mill and quartz mine, and verbally assigned their interest in the water contract. The interest of the mining company in the mines seems to have been only that of the holder of a bond for the conveyance thereof. The corporation worked the mine, and received water on the contract of the mining company, until September, 1879, when they abandoned operations, and on the second day of September, 1879, assigned the water contract to the plaintiff herein, and at the same date the mining copartnership, by C. J. Garland, one of its members, assigned said water contract to plaintiff, of all of which the Amador Company had notice. On the third day of May, 1881, all of the copartners of the Moore Mining Company executed a further assignment of the water contract to plaintiff, and ratified and confirmed the act of C. J. Garland in the assignment of September 2, 1879. Defendant caused $50 to be paid to plaintiff, on account of the contract, February 28, 1881. It is conceded that defendant had received in net profits from the sale of water from the ditch in question a sum sufficient to satisfy the balance due on the contract. The intervenors, Bright and Newman, claimed under a mechanic's lien taken upon the mill and mine, for work performed for the corporation, and hold a sheriff's deed under which they claimed the water contract or right and ditch passed to them, as appurtenant to the mill and mine. The court rendered judgment in favor of plaintiff, as against defendant and the intervenors. The latter have not appealed. The first point made by appellant is that the fifth finding is not sustained by the evidence, and is against the evidence. This is the finding in which the court finds a verbal assignment of the water contract. In our view of the case, it is quite immaterial whether the contract was or was not assigned by the mining company to the corporation. Both the mining company and the corporation assigned to the plaintiff, and if the rights under the contract did not vest in him under one of these assignments, they must have done so under the other. In this connection, it is proper to say the third point made by appellant, that the assignment by the corporation to plaintiff was as security only, cannot be sustained. By the order of the board of directors, the president of the corporation was authorized to sell, assign, and transfer any and all property for the benefit of the creditors to the best possible advantage, or as he may see fit. He assigned the contract absolutely, and the witness Woorhies declares it was not done by way of security, but in payment of a claim of plaintiff against the corporation, amounting to $3,400. The assignment was in form sufficient to transfer title in the chose in action to plaintiff, and if there is in fact any contingent interest remaining in the corporation it is the province of the latter, and not of defendant, to assert it. If a chose in action is transferred by an assignment absolute in form, though as security only, for a debt less in amount than the sum due, or to become due, upon the instrument assigned, the assignee is not limited, in an action upon such chose in action, to recover only the sum due him from the assignor, but may recover the whole amount due thereon, being in turn responsible to his assignor for any excess. The second point of appellant is not sustained by the evidence. It certainly does appear that on the first of September, 1879, or thereabouts, the corporation quit and abandoned work on the mine. Subsequently thereto, Garland, its manager, did some work on his own account and at his own risk, and by consent of the company, upon the mine, but under the testimony he could not have held the corporation responsible for the expense thereof, and it was not in any proper sense work of the corporation. The contract upon which the action was brought, both by its terms and its character, was assignable. The ditch which was to be constructed by the mining company was to be paid for by the defendant. It was, according to the pleadings, delivered to the defendant when completed, and possession thereof has ever since been retained by such defendant. The water run through this ditch to the quartz-mill was to belong to defendant, after being used to run the machinery. In case work was abandoned at the mine, defendant was to pay for the construction of the ditch out of the proceeds of water sold therefrom. These facts, taken together, seem to indicate that defendant owned the ditch, and that neither the structure nor the water to be run through it bore any such relation to the mill or mine as to make them, or either of them, an appurtenant thereto. "A thing, to be appurtenant to another, must be of a different and congruous nature, such as an easement or servitude, or some collateral incident belonging to and for the benefit of the land.” STORY, J., 1 Sum. 21; Civil Code, § 662. Here the ditch, and the water which it conveyed, were not the property of the owners of the mill or mine. The water supply of a mill will ordinarily pass with a conveyance of the mill, but, in order to do so, it must belong to the mill,—must be the property of the owner thereof, and not of another. We may add that the question as to whether the water supply did or did not pass to the intervenors as an appurtenant of the mill is one that cannot affect the defendant in the manner claimed by it. The court below found that it did not pass, and rendered judgment against the intervenors, from which judgment they have not appealed. They are concluded by the action of the court from asserting any claim to the water under the contract in question. The motion for a nonsuit was properly denied. The additional questions of law presented by the record cannot, we think, affect the result, and the judgment and order should be affirmed.

We concur: Foot'E, C.; BELCHER, C. C.

By THE Court. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(67 Cal. 474)

LowDEN v. FREY. (No. 9,798.)
Filed September 25, 1885.

1. FINDINGs—CONFLICTING EVIDENCE. Where the evidence on a trial is conflicting, findings based thereon will not be disturbed on appeal. 2. SAME—EVIDENCE—JUDGMENT AFFIRMED. Findings and evidence reviewed, and he'd, that plaintiff was not entitled to judgment, and judgment of court below affirmed. 3. APPROPRIATION OF WATER-RIGHT, whEN LOST. A water-right, under appropriation for mining purposes generally, is not lost by exhaustion of the mine for which it was appropriated.

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