party for all detriment proximately caused thereby or which would be likely to result therefrom, furnished the measure of damages, and plaintiff could not recover the full contract price, as the detriment to him at most was the contract price less the expenses he would have incurred had be delivered the apples; and section 3310, relating to the breach of an agreement to pay for personal property, and section 3311, relating to breach of agreement to buy personal property, did not apply. [Ed. Note.-For other cases, see Sales, Cent. Dig. 88 1098-1107; Dec. Dig. 384.] 2. SALES 382-ACTION FOR BREACH-EVI DENCE-DAMAGES. In such action, where the pleadings presented plaintiff's claim for 50 cents per box net, more than double the amount defendant claimed as the contract price, evidence for defendant that the market value of apples where they were grown, of such kind as were involved, was $12 per ton, was admissible. [Ed. Note.-For other cases, see Sales, Cent. Dig. 1096; Dec. Dig. 382.] Appeal from Superior Court, Napa County; Emmet T. Seawell, Judge. Action by Jesse Griffith against Welbanks & Co. Judgment for plaintiff, motion for new trial denied, and plaintiff appeals. Judgment and order reversed. W. H. Mahony, of San Francisco, for ap pellant. Dudley D. Sales and Theodore A. Bell, both of San Francisco, and E. S. Bell, of Napa, for respondent. CHIPMAN, P. J. Plaintiff commenced the action to recover the sum of $1,700 for the breach by defendant of the following alleged contract: "Agreement. "This agreement, made and entered into this twenty-third day of September, 1912, by and between Jesse Griffith, of St. Helena, California, and Welbanks & Company, a corporation, with its principal place of business in the city and county of San Francisco, state of California, witnesseth: "That the said Welbanks & Company agree to purchase and does purchase and the said Jesse Griffith agrees to sell and does sell all number one apples (approximately) 4,000 boxes grow ing on that certain tract of land leased by said Jesse Griffith at the price of (ten [10] dollars per ton or) fifty ($.50) cents per box f. o. b. St. Helena. "Jesse Griffith agrees to nail up all shook, do all the picking and hauling from the orchard to St. Helena, and when apples are ready for shipment, haul same from the packing house and load f. o. b. the cars at St. Helena, California. "Welbanks & Company agree to supply all the necessary material, viz.: Shook, paper, nails, etc., for the packing of said crop, to haul same from railroad at San Francisco to store, and to furnish the packer for the packing of said crop. (Pay freight on shook, apples, etc.) "It is further understood and agreed that after said charges and cartage have been deducted from the gross proceeds the said Jesse Griffith and Welbanks & Company shall enjoy all profits, share and share alike. "In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. "[Signed] Welbanks & Co., "B. C. Flocton, Sec. "Jesse Griffith." It is alleged that the 4,000 boxes of apples mentioned in the contract "were ready for picking, packing, and shipping on or about October 1, 1912, as the defendant then and there well knew, but the defendant for a period of 15 days after said apples became ready for picking, packing, and shipping as aforesaid, willfully failed, neglected, and refused to supply the necessary materials and boxes for the packing of said crop, or to furnish the packer for the packing thereof, and solely by reason of said delay, about 2,500 boxes of said No. 1 apples which remained on the trees unpicked, were destroyed by wind and rain"; alleged that plaintiff was ready and willing at all times to do all the picking, etc., required of him by said contract, but by reason of defendant's said neglect plaintiff was unable "to pick any part of said 2,500 boxes, or to preserve them from destruction by wind and rain as aforesaid"; that there were picked and packed "1,594 boxes of said No. 1 apples," for which defendant has paid plaintiff $300 and no more, and there is now due and owing plaintiff from defendant the sum of $1,700; that plaintiff has fully performed each and every covenant in said contract by him to be performed. Defendant denied the execution of the contract set out in the complaint, but alleges that, on September 23, 1912, defendant prepared and signed in duplicate a proposed agreement in form similar to that set forth in plaintiff's complaint, except that as proposed the contract read "at the price of ten ($10) dollars per ton or fifty ($.50) cents per box f. o. b. St. Helena," whereas, as changed by plaintiff, it read, "at the price of fifty ($.50) cents per box f. o. b. St. Helena," and there were added to the fourth paragraph the words, "Pay freight on shook, apples, etc." The words "ten ($10) dollars per ton or" were erased by drawing ink lines through them and the added clause was written in by pen. The contract as proposed was typewritten. That as thus changed plaintiff returned one of the duplicate copies of the agreement, with a letter calling attention to the words "pay freight on shook, apples, etc.," but did not call defendant's attention to the alteration by striking out the words "ten ($10) dollars per ton or," and defendant "had no knowledge of the striking out of said words last referred to until on or about the 3d day of January, 1913, when its attention was directed thereto by letter from plaintiff and after all the apples hereinafter described had been shipped, and the contract hereinafter alleged had been performed and executed by the defendant herein." It is then alleged that the document set forth in the complaint is but one of a number of paper writings signed by the parties; that it was not the intent of plaintiff to sell and defendant to buy the apples referred to, but that the transaction was to be a joint ven- | 1,593 boxes to the best advantage and reature, except that plaintiff was to be guar-lized therefrom $1,228.85 and no more; alanteed $10 per ton for all No. 1 apples ship- leges that defendant paid out on account of ped to defendant, and the terms of the agree- said charges certain stated sums, and that ment actually entered into were as follows: the share of the net profits to which plainPlaintiff was to harvest the crop and haul tiff is entitled is the sum of $231.85, which it to the packing house to be packed; he was defendant offered to pay plaintiff prior to to nail up all shook and to haul all said the commencement of the action, but plaintiff crops, after it was so packed, to the depot refused to accept the same, and that defendat St. Helena, and place the same aboard ant paid into court said sum of $231.85. Dethe cars for shipment to San Francisco, and fendant prays judgment in favor of plaintiff to receive in payment therefor $10 per ton, for said last-named sum, and that defendant estimated at about 23 cents per box, and it recover costs of suit. The cause was tried was likewise agreed that the cost of packing, with a jury, and plaintiff had the verdict for including the materials required therefor $1,200. Defendant appeals from the judgtogether with said $10 per ton or 23 cents ment and from the order denying its motion per box would be 50 cents per box; that for a new trial. defendant agreed on its part to advance the cost of supplying materials for packing, namely, shook, paper, nails, etc., and the labor and service of packers, advance the cost of freight on shipments by rail and cartage at San Francisco, and to sell the apples at the best market price; that upon making sales all charges, including the material and cost of labor for packing and said guaranteed $10 per ton (or 23 cents per box) of apples and all charges for freight and cartage at San Francisco, were to be deducted from the gross proceeds of sales and the net profits, if any, were to be divided equally be tween plaintiff and defendant; that the words "price of fifty cents per box f. o. b. St. Helena," as appear in said document set forth in plaintiff's complaint, referred to "the estimated cost of said apples after payment of said $10 per ton to plaintiff and payment of the cost of the material and labor furnished for packing the same for shipment at St. Helena." The answer denies the averments of the complaint as to the alleged number of boxes of apples ready for shipment October 1, 1912, or at any time; denies that defendant refused to supply the necessary materials for boxes; denies that, by reason of any delay on defendant's part to furnish boxes, 2,500 or any number of boxes of said apples remained on the trees unpicked and were destroyed by wind or rain; denies that plaintiff was ready or willing to do the part of the work which he agreed to do; and denies that plaintiff solely or at all was unable to pick any boxes of apples or to preserve them from destruction by wind or rain through any neglect or refusal of defendant; denies that plaintiff packed or delivered to defendant 1,594 boxes of No. 1 apples pursuant to any agreement, or that defendant paid plaintiff any money other than under the agreement set out in the answer; denies that there is any money due plaintiff from defendant other than as alleged in the answer, that plaintiff packed and shipped 1,593 boxes of apples of which only 1,034 were No. 1 apples, and that 559 boxes were smaller in size and of less marketable value, and that defendant sold said Plaintiff estimated that there were 4,500 boxes of No. 1 apples on the trees when the contract was made. In the contract the estimate was 4,000 boxes (approximately). He shipped 1,593 boxes. In his testimony plaintiff testified that, of the apples "blown off the trees on account of wind and rain, I figured from 2,500 to 3,000 boxes were No. 1 apples." Under the contract, plaintiff was to "nail up all shook, do all the picking and hauling from the orchard to St. Helena, and when apples are ready for shipment, haul same from the packing house and load f. o. b. the cars at St. Helena, Cal." Plaintiff testified at some length as to delays in sending packing materials and packers; that there were not enough packers to keep up with the picking and that some of them were incompetent; that by reason of defendant's failure to perform its part of the agreement in these and other particulars the picking and packing ran along so late in the season that about 2,500 or 3,000 boxes of apples were destroyed by wind and rain storms. He testified that 1,593 boxes of apples were packed and shipped and none of them rejected and that he had received on account $300; that his orchard was on Howell Mountain, 8 miles from St. Helena. Other witnesses testified to facts tending to establish plaintiff's contention that the destruction of his crop of apples was attributable to defendant's failure to perform its part of the contract. There was evidence submitted by defendant in conflict with plaintiff's testimony. [1] Defendant's answer and its evidence was in effect that the contract agreed upon and under which plaintiff and defendant acted was one of profit sharing by which plaintiff was guaranteed $10 per ton or 23 cents per box, and, after the various charges referred to in the contract and the cost of marketing the fruit were deducted, plaintiff and defendant were to share equally whatever profits there might be. Plaintiff testified that there was no such understanding. Defendant called witnesses who testified in support of its contention and introduced letters written by plaintiff to defendant during the course of the packing and up to the close of, Plaintiff was to receive, upon his view of the the transaction, which seem to support de- contract, 50 cents per box for his apples aftfendant's position. At no time prior to Janu- er he had picked, packed, and hauled them to ary did plaintiff make any claim for apples St. Helena and delivered them on board the destroyed by winter storms or that defendant cars. Upon no just principle can he recover was responsible for the loss. However, if the full contract price, for the detriment to the jury was justified from sufficient evidence him is at most the contract price less the exin finding that the loss was caused by de- penses he would have incurred had he defendant's failure to perform its duty under livered the apples. the contract and plaintiff was free from fault, which we do not now deem it necessary to decide, and if the jury were justified from the evidence in finding that defendant agreed to pay plaintiff 50 cents per box net for his apples and not $10 per ton or 23 cents per box, and that there was no agreement to share profits as part consideration for the sale, issues upon which we express no opinion, there remains the question: Was the amount of the verdict justified by the evidence? It is conceded that in estimating damages the jury allowed 50 cents a box on 3,000 boxes of apples, less $300 paid on account, but took no account of the cost of picking, nailing the shook, and hauling the apples to St. Helena and putting them on board the cars. Plaintiff justifies the verdict on the ground that, as the apples were destroyed, there was no occasion for incurring the expense of these charges, and defendant cannot complain because in any event its liability was to pay 50 cents per box. Except where otherwise expressly provided by the Civil Code, the measure of damages "for the breach of an obligation arising from contract * is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which in the ordinary course of things, would be likely to result therefrom." Civ. Code, § 3300. Where the title to personal property is vested in the buyer, the detriment caused by his breach of the agreement to accept and pay for the property "is deemed to be the contract price." Civ. Code, § 3310. "The detriment caused by the breach of a buyer's agreement to accept and pay for personal property, the title to which is not vested in him, is deemed to be: * * (2) If the property has not been resold in the manner prescribed by section 3049 (i. e., sold to enforce a lien, not this case), the excess, if any, of the amount due from the buyer, under the contract, over the value to the seller, together with the excess, if any, of the expenses properly incurred in carrying the property to market, over those which would have been incurred for the carriage thereof, if the buyer had accepted it." Civ. Code, § 3311. Clearly, the title to the property involved in the present case was not vested in defendant, and section 3310 has no application. Where, as here, the property consisted of a growing crop which was destroyed by the elements before it was harvested and was never in a condition to be delivered to the buyer, we do not think section 3311 furnishes the true measure of damages. The just and In Coburn v. California, etc., Co., 144 Cal. 81, 84, 77 Pac. 771, the contract was for the sale of cement clay at a stated price per cubic yard on delivery. Defendant received a certain quantity and refused to receive any more. After referring to section 3311, Civil Code, the court said: "Where, however, there is no value, or where under the terms of the special contract the market value is not an appropriate or adequate criterion of damages, it has been said that the measure of damages is compensation for the actual loss suffered. 24 Am. Eng. Ency. of L. 1115. The law seeks to give the complaining loss which the fulfillment of the contract would party the value of his bargain, to prevent a have prevented, to put the injured party, so far as money can do it, in the same position as if the contract had been performed. Id., vol. 8, p. 632. Accordingly, the contract price less the cost of performing the contract was held to be the proper measure of damages when the buyer refused to take all the tomatoes grown on a certain tract of land, it appearing that there was no other market for the tomatoes"-citing cases. See O'Connell v. Main, etc., Hotel Co., 90 Cal. 515, 27 Pac, 373. In Allen v. Los Molinos Land Co., 25 Cal. App. 206, 143 Pac. 253, there was a breach of a contract by failing to furnish water for the irrigation of a crop of potatoes, in consequence of which the yield was less than it would have been had sufficient water been supplied. We held in that case that section 3300 of the Civil Code furnished the rule for value of the potatoes at the selling place less measuring the damages, namely, the market the expenses incurred in growing and mar of market value at the selling place or else keting the crop. Plaintiff offered no evidence where. The jury had no criterion by which to measure the damages except the contract price of the apples and the estimated quantity destroyed. In its answer defendant denied the execution of the contract sued upon; denied that in its altered form it expressed the intention of the parties and set forth in much detail what it claimed was the contract as shown by the acts, the verbal agreements, and correspondence of the parties; that the price guaranteed plaintiff was $10 per ton or what both parties estimated would be 23 cents per box, in addition to which plaintiff was to share equally with defendant in the profits. In a letter written by plaintiff to defendant, September 18, 1912, when negotiations were progressing for the sale and purchase of the apples, plaintiff stated that the price for the apples was figured at $10 per ton in enumerating the different items making up 50 cents [2] Upon the issues as presented by the pleadings, plaintiff claiming 50 cents per box net, more than double the amount defendant claimed was the contract, defendant was entitled to any evidence which would legitimately tend to discredit plaintiff's claim and sustain defendant's claim. Defendant's witnesses testified that the market value of apples at St. Helena, such as were involved, was $12 per ton. The court afterwards struck out this testimony, and defendant excepted to the ruling. We think this was error, for, had the jury believed the testimony of these witnesses, it would have had some tendency to show that plaintiff's claim was unreasonable and that defendant would not have been likely to enter into a contract to pay twice the market value of the apples. We refrain from discussing the sufficiency of the evidence to sustain the implied finding of the jury that the contract was as contended by plaintiff, for the reason that should another trial be had the evidence may not be the same as at the first trial. The judgment and order are reversed. CONREY, P. J. At all times mentioned in the complaint the plaintiff was a corporation organized for the purposes of securing water for irrigation and other purposes, and for distribution of the same at cost, among its stockholders only, for use upon lands owned by them within certain described limits in the county of Imperial, and has been engaged in distributing upon said lands a large amount of water which it receives at the IMPERIAL WATER CO. NO. 1 v. WORES Southerly boundary of its territory and dis et al. (Civ. 1772.) (District Court of Appeal, Second District, fornia. Dec. 24, 1915.) tributes through a system of canals and ditches. The defendant Lucy Wores, in the Cali-year 1905 or prior thereto, became the own 157 1. WATERS AND WATER COURSES [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 185; Dec. Dig. ~157.] 2. WATERS AND WATER COURSES WAYS FOR CANALS-ACQUISITION. 157 An owner of land requested an irrigation corporation to construct a waste ditch along the south side of his land. The corporation constructed the ditch on a diagonal line through the land. The owner, on obtaining knowledge of the facts, protested and informed the corporation that he intended to make use of the ditch to irrigate his land by using some of the waste water. The ditch was completed, and the owner erected a check and gate therein. The corporation removed, when necessary, the check and gate, but replaced the same by a similar and more substantial structure. The check and gate remained in the ditch for some time, and the owner used water for irrigation. Held, that the corporation acquired the right to maintain the ditch subject to the owner's right to use the water therein for irrigation. [Ed. Note.--For other cases, see Waters and Water Courses, Cent. Dig. § 185; Dec. Dig. 157.] 3. QUIETING TITLE 54-COSTS-LIABILITY "RIGHT TO REAL PROPERTY." Under Code Civ. Proc. § 1022, subd. 5, providing that costs are allowed of course to plaintuf on a judgment in his favor in an action involving title or possession of real estate, a plaintiff, suing for a decree quieting its title to a ditch for waste water over the land of defendant and obtaining a decree establishing its right to maintain the ditch subject to the right of de er of a tract of land, known as tract No. 74, situated immediately north of the territory watered by the plaintiff's irrigation system. The canal system of plaintiff extends in a northerly direction through its territory, and the canals converge in the northerly part of this territory and discharge their surplus and waste water into a canal designated as the Rose wasteway. Prior to the year 1906, there was a well-defined water course known as the Salton river, later called the Alamo river, which ran across a portion of tract 74, but in a more northerly direction than that taken by the present Rose waste canal. This water course carried the overflow water from the Colorado river whenever any was discharged, and also carried the rainwater which fell, when any such rainwater did fall, over a considerable part of the territory covered by the water system of the plaintiff. Such rainfall and overflow water was thus carried over and through tract 74 to lower lands lying farther to the north. Since March 1, 1904, plaintiff has continuously conveyed and discharged waste water from its canal system across and beyond said tract 74. At all times mentioned in the complaint the defendant Charles R. Wores was the agent or representative of the defendant Lucy Wores in the transactions referred to herein. In the years 1905 and 1906 the defendants complained to plaintiff of the discharge and flow of waste and excess water going through For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The plaintiff by this action seeks a decree quieting its title or right to the use of said wasteway across the land of the defendants, and enjoining the defendants from maintaining any obstruction which will in any manner interfere with the free ingress or egress of the plaintiff or its employés for the purpose of cleaning, repairing, or inspecting the wasteway, and further enjoining the defendants from obstructing in any way or for any Upon purpose the flow of water therein. sufficient evidence the court found the facts to be as we have stated them, and likewise found: plaintiff's Rose canal from the south and than that theretofore placed in the canal by complained that the water was flooding tract the defendants. This replacement was made 74, and requested the plaintiff to construct by the plaintiff for the convenience of the a ditch or canal from the said Rose waste- defendant Lucy Wores and in order that she way south of tract 74 in such a way as to might continue to irrigate her said land. prevent the flooding of tract 74, and request- The Rose Wasteway is a necessity to the ed that such canal be constructed along the canal system of the plaintiff, and it is imsouth line of tract 74 from the southwest practicable to operate and maintain plaincorner of that tract easterly past its south- tiff's system without such wasteway or some east corner to a deep gulch known as the available substitute therefor. Shortly before Alamo cut-off. In April, 1906, after making the 20th day of June, 1912, the plaintiff ensurveys, the plaintiff concluded to build such tered upon said canal and tore out the check waste canal, not along the south side of tract and gate which it had constructed as above Two days 74, but upon a diagonal line running through stated and destroyed the same. that tract northeasterly. Thereupon it pro- later the defendants re-entered upon the ceeded to construct the canal upon such di- canal and by the erection of a barbed wire agonal line and completed the work in De- fence excluded and ejected the plaintiff therecember, 1906. The defendants were without from and placed a temporary check in the knowledge of the selection of this diagonal canal (near the place from which the former route, or that plaintiff intended construct-check had been removed) for the purpose of ing the canal through the tract, until the enabling them to divert water from the waste same was partially constructed. They gave canal for irrigation, as they had been acno prior consent thereto other than their re- customed to do. quest for the construction of a canal along the south line of their tract, as before stated. In April, 1906, at a time after the commencement of the construction of this canal or ditch, the defendants learned of the work that was going on and protested to plaintiff and objected to the place where the canal was being constructed. Shortly thereafter the defendant Lucy Wores notified plaintiff that she intended to make use of this canal herself for the purposes of conducting waste The water over and irrigating her land. canal having been completed, plaintiff began to use it as a wasteway for its surplus water, and ever since has so continued without interruption, except as will be herein stated. In January, 1908, defendants placed an obstruction consisting of a check and gate so arranged that they could dam up the water flowing in this waste ditch and divert the water therefrom so as to irrigate a portion of tract 74. In January, 1909, defendants commenced to irrigate and cultivate this land and have ever since continued so to do, and have irrigated such land by checking up the water in the waste canal and diverting the water therefrom, thereby causing the banks of the Rose wasteway to overflow and discharge water upon the roads, fields, and crops of those adjoining that canal to the annoyance and detriment of the plaintiff and its stockholders. The plaintiff and its officers and directors have at all times known that the defendants have obstructed this waste canal and used the water therefrom for irrigation, and until shortly prior to the commencement of this action never made any objection thereto. The action was commenced by filing of the complaint herein on June 26, 1912. About one year prior thereto plaintiff removed the check theretofore placed in the canal by the defendants, in order that plaintiff might clean out the canal, but immediately thereafter plaintiff replaced said "That since the construction of said wasteway across the said tract 74, the defendant Lucy Wores has consented to the maintenance thereof subject to her right to use the same for irrigation in the manner in which she has used the same as aforesaid, and has not consented otherwise." In accordance with its conclusions of law following the findings of fact, judgment was rendered to the effect that: "Upon the restoration and reconstruction by plaintiff of the check torn out and destroyed about the 1st of June, 1912, and in substantially the same condition, location, and position as the same existed at the time the same was removed therefrom and destroyed by plaintiff, and not otherwise, plaintiff is entitled to use the waste canal described in the complaint, across the lands of defendant Lucy Wores, and to discharge its surplus waters therethrough in the same manner that it has been accustomed to discharge the same, subject always to the right of the defendant Lucy Wores to obstruct and divert such waste water by means of said check or irrigating so much of said tract 74 as she has been accustomed to irrigate previous to the said June 26, 1912, and no more. It is ordered and adjudged that in diverting the said waste water defendant shall not check said water to any higher level than that to which she checked the same prior to June 26, 1912. It is further ordered that any check placed in the said wasteway by plaintiff shall be so constructed as to permit all water in excess of that being diverted by defendant to flow down the said wasteway without interference, and that when not in use such check and obstruction shall be so re |