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is confined to the amount which will, in the language of the Code above quoted, “compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likelg to result therefrom.” The wisdom of the doctrine, as contained in this provision of the Code, has been recognized by most writers upon the subject of damages. Field, in his work on Damages, § 10, says:

“To trace remote effects or causes would often be a difficult, if not an impossible, task. It would require an infinite mind. Each cause produces results that in turn, alone or by combination with other causes, produce other effects, and so ad infinitum. It is a subject too abstruse and complicated for the human mind.”

The damages must be proximately caused thereby,—that is, such as next immediately follow and are produced by the act complained of,—or, if not thus proximate, such as, in the ordinary course of things, would be likely to result therefrom. The case of Smeed v. Foord, 1 El. & E. 602, cited at section 254, Field, Dam., illustrates clearly the doctrine we are considering, and the distinction between proximate and remote damages: “The defendant had contracted to deliver a threshing-machine to a farmer within three weeks, knowing it was needed to thresh wheat in the field, but did not deliver it at the time agreed, and, after reasonable efforts to secure the crop, the plaintiff's wheat was injured by the necessary delay in saving the crop and in consequence of a rain, and he sustained a further damage from a fall in the market price which occurred before it could be kiln-dried and got ready for sale. He was held entitled to recover the loss by the injury to the wheat, but not to the change in the market, as the former loss might well have been in the contemplation of the parties, but not the latter.” The doctrine of that case illustrates what should be the rule here.

Defendant here contracted for piles to be used in fulfillment of a contract with the drainage commissioners, of all of which plaintiff was aware. By the delay of the latter in delivering the piles, defendant suffered loss, was compelled to pay for the use of a pile-driver, lost his time, and sustained other expenses, which he proved; and, as the verdict was for less by $700 than the amount claimed and proved by plaintiff, we may reasonably infer defendant was allowed a deduction on account of the damages thus sustained. He sought but was prevented from proving the loss he sustained by failure to collect the money due him from the state. The failure of plaintiff to deliver the piles in time was a remote, not a proximate, cause of defendant's failure to receive compensation on his contract. It is said the drainage act, under which defendant was a contractor, was declared unconstitutional. Whether defendant failed from this cause, or because the fund from which he was to be paid was exhausted, or from any other like cause, to receive payment from the state, seems to us unimportant. This is not a loss “which, in the ordinary course of things, would be likely to result” from a failure to deliver under the contract.

It was damages which could not well have been contemplated by the parties when they entered into the contract. The failure of defendant to secure compensation from the state was a result brought about by the interposition of other agencies, dependent upon independent causes, over which plaintiff and defendant had no control, and could not have contemplated. It was a loss which, like the change in the market price of wheat mentioned in Smeed V. Foord, supra, was too remote to have been contemplated. We are of opinion the judgment of the court below, and the order denying the motion for a new trial, 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. 501) RECLAMATION DIST. No. 3 v. PARVIN and others. (No. 11,027.) Filed September 26, 1885. 1. RECLAMATION DISTRICT-SUIT FOR ASSESSMENT-PARTIES TO Delinquent assessments, in reclamation districts organized under the California statute, are to be collected in the same manner as are state and county taxes, and this may be done by actions brought in the name of the people of the state; but where the action is brought in the name of the reclamation district, instead of that of the people, the former being the real party in interest,

the action may be maintained, and there is no error because the action is so brought.

2. COMPLAINT—SUFFICIENCY OF ALLEGATIONS. Where a statute requires that commissioners shall “jointly view and assess upon each and every acre to be reclaimed or benefited thereby a certain tax,” etc., and the complaint in an action to recover such assessment alleges that “the commissioners jointly viewed the lands in the district, and jointly assessed upon each and every acre to be reclaimed or benefited thereby the amount of the assessment in proportion to the whole expense, and to the benefits resulting from the works of reclamation, and that they made a list showing the amount of the charges assessed against each tract,” etc., an objection that the complaint is ambiguous, unintelligible, and uncertain therein is not well taken. Commissioners' decision. Department 1. Appeal from superior court, county of Sacramento. A. L. Buckley and G. W. Gordon, for appellant. McKune & George, for respondent. BELCHER, C. C. This is an action to recover a delinquent assessment upon certain lands situated in the reclamation district which is named as plaintiff. The defendants demurred to the complaint upon the ground that the action should have been brought in the name of the people of the state of California as plaintiff, and not in the name of the district, and upon the further ground that the complaint was ambiguous, unintelligible, and uncertain. The court sustained the demurrer, and, the plaintiff declining to amend, judgment was entered in favor of the defendants. From this judgment the appeal is taken.

1. The plaintiff was organized as a reclamation district under the provisions of the “Act to provide for the management and sale of the lands belonging to the state,” approved March 28, 1868. Under this act delinquent assessments were to be collected “in the same manner as is provided by law for the collection of state and county taxes,” (section 33 ;) and it has been held that actions to collect such assessments were properly brought in the name of the people as plaintiff. People v. Hagar, 52 Cal. 171; People v. Haggin, 57 Cal. 579. It has also been held, since the decision upon the demurrer in this case, that actions to collect such assessments may be maintained when brought in the name of the reclamation district as plaintiff, the district being the real party in interest. Reclamation Dist. No. 108 v. Haġar, 4 Pac. Rep. 945. That decision is decisive of the point now raised here.

2. The point that the complaint is ambiguous, unintelligible, and uncertain is not well taken. The statute (section 33) required the commissioners to “jointly view and assess upon each and every acre to be reclaimed or benefited thereby a tax,” etc. The word “jointly” qualifies the words “view” and “assess,” but it means only that the thre commissioners, acting jointly or together, shall view and as

sess, etc.

The complaint alleges that the commissioners jointly viewed the lands in the district, and jointly assessed upon each and every acre to be reclaimed or benefited thereby the amount of the assessment in proportion to the whole expense, and to the benefits to result from the works of reclamation, and that they made a list showing the amount of the charges assessed against each tract of land in the district, with other necessary particulars. This, we think, was sufficient.

It results that the judgment should be reversed and the cause remanded, with directions to the court below to overrule the demurrer.

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BY THE COURT. For the reasons given in the foregoing opinion the judgment is reversed, and cause remanded, with directions to the court below to overrule the demurrer.

(67 Cal. 500)
CAMERON, Ex'r, etc., v. CARRoLI. (No. 9,748.)

Filed September 26, 1885.

JUDGMENT BY DEFAULT—DISCRETION IN SETTING ASIDE. Where a judgment by default was rendered against plaintiff in the absence of his attorney, and on a motion to set aside the default it appeared that the case was on trial at one town and the attorney’s residence at another, and that the attorney supposed, with good reason, that the case would not be tried at the time it was taken up, there was no abuse of discretion on the part of the court in making the order setting aside the default.

Commissioners’ decision. Department 1. Appeal from superior court, county of Sacramento. R. T. Devlin, for appellant. Chipman & Garter, W. H. Beatty, and S. C. Denson, for respondants. BELCHER, C. C. This is an appeal from an order setting aside a judgment rendered in the absence of the plaintiff and his attorneys. The motion to set aside the judgment was made under section 473, Code Civil Proc., and was granted on condition that the plaintiff pay to the defendant the sum of $100 within 10 days. The defendant excepted. The only question is, did the court abuse its discretion in making the order? After reading the affidavits presented, we cannot say that there was any abuse of discretion. The case was at Sacramento, and the plaintiff's attorneys resided at Red Bluff, and supposed, and we think not without reason, that the case would not be tried at the time it was taken up. McKinley v. Tuttle, 34 Cal. 235. “The exercise of the mere discretion of the court ought to tend, in a reasonable degree at least, to bring about a judgment on the very merits of the case; and when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application.” Watson v. San Francisco di H. B. R. Co. 41 Cal. 20. The order should be affirmed.

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

BY THE CouRT. For the reasons given in the foregoing opinion the order is affirmed.

(67 Cal. 547)

HIBBERD V. SMITH. (No. 7,275.)

Filed September 28, 1885. DEED-DELIVERY-JUDGMENT AFFIRMED.

The opinion of the court in department is approved and adopted as the opinion of the court on rehearing. In bank. Appeal from superior court, county of Alameda.

John W. Dwinelle, B. G. Brooks, T. H. Hittell, and M. G. Cobb, for appellants. J. P. Hoge and A. A. Cohen, for respondents.

BY THE COURT. The opinion heretofore delivered in the above case, reported in 4 Pac. Rep. 473, is hereby approved and adopted by the court on rehearing, with the addition thereto of the following authorities: Welch v. Sackett, 12 Wis. 243; Kingsbury v. Burnside, 58 Ill. 310; Com. V. Jackson, 10 Bush, 424; Bell v. Hays, 11 Bush, 34; Palmelee v. Simpson, 5 Wall. 81.

Judgment and order affirmed.

McKEE, J., expressed no opinion; SHARPSTEIN, J., disqualified.

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