Myers v. South Feather River Water Co.

Citations

• 14 Cal. 268

Syllabus

<p>Plazstiei? contracts to dig a ditch for a water company, the company agreeing to pay three dollars per rod—one-third of it in money, on the completion of each mile—the other two-thirds to be paid in water, at the rate of'twenty-five cents per square inch, delivered through an orifice, under six inches of pressure, anywhere along, and at, the main ditch; the company having the right of paying the two-thirds in cash instead of water, if they so elect. JBeld, that said two-thirds, if elected to be paid in cash, need not be paid as the other third, on the completion of each mile.</p> <p>If the payment be made in water, it could not be claimed before the completion of the ditch, and the cash cannot be required sooner.</p> <p>Plaintiff having assigned this contract to L. & Co. as security for a debt due them by plaintiff, they demanded of the company payment of whatever was coming to plaintiff. The company elected to pay, and did pay, in cash, on a statement as of so much due in money. Held, that even if L. <& Co. had no right to receive money instead of water, yet the payment binds plaintiff, for they were acting ostensibly for him, or by his authority; that if he denied their authority, the payment would not discharge his debt to L. & Co. the assignment would remain in force, and the plaintiff would have no cause of action here; that if he affirmed the arrangement made by L. & Co. in part, he must give full effect to it, and thus confirm the settlement, as the liquidation of a money demand.</p> <p>If the company paid L. & Co. more than was due them from plaintiff, he must look to L. & Co. The assignment being general, L. & Co. were authorized to receive the entire amount, and became Trustees of plaintiff for the excess.</p>