res

proceedings are had, authority is not given to condemn land to be used as a reservoir in which to store or impound water. It is true, as said by counsel, that, in the enumeration of the public uses found in section 1238 of the Code of Civil Procedure in behalf of which it is declared the right of eminent domain may be exercised, the word "1 ervoir" is not found; but in classifying the estates and rights in lands subject to be taken for public use, it is provided by section 1239 of the Code that a fee-simple may be taken when needed "for public buildings or grounds, or for permanent buildings, for reservoirs and dams, and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of deb s or tailings of a mine. The supplying of the inhabitants of an incorporated city with pure, fresh water is by section 1238 declared to be a public use in behalf of which the right of eminent domain may be exercised, and section 1239 provides, in effect, that the entire estate in a given piece of land may be taken when needed for a reservoir in behalf of such use.

Although the complaint alleges that the defendant is a corporation organized under the laws of the state for the purpose of supplying the city of Oakland and its inhabitants with pure, fresh water, and that defendant is the owner of the property sought to be taken, it is not averred that the property in question is used by defendant in supplying Oakland or its inhabitants with water, or that it is appropriated to any other public use. Therefore the point made by respondent's counsel that property appropriated to public use cannot be taken unless for a more necessary public use than that to which it has been already appropriated, cannot arise on the demurrer.

Judgment reversed, and cause remanded with directions to the court below to overrule the demurrer to the amended complaint, with leave to defendant to answer.

JAMISON and others v. SIMON and others. (No. 8,516.)1

Filed November 19, 1885.

SALES-STATUTE OF FRAUDS-DELIVERY AND ACCEPTANCE.

An oral contract of sale, where no part of the price is paid, is invalid, unless the buyer accepts and receives part of the thing sold; a delivery alone by the vendor is not sufficient, but there must be a receipt and acceptance by the vendee, and the acceptance must be voluntary and unconditional. Department 1. Appeal from superior court, county of Merced. J. C. Burch, for appellants.

W. L. Dudley and R. H. Ward, for respondents.

Ross, J. This action was brought to recover damages alleged to have resulted to the plaintiffs by reason of the breach by the defend

1 See note at end of case.

ants of a contract for the sale of a certain lot of wool. The contract was oral, and no part of the price was paid. Under such circumstances the contract is by the statute declared to be invalid unless "the buyer accepts and receives part of the thing sold." Civil Code, § 1739. "There must be not only a delivery of the goods by the vendor," said the court of appeals of New York, (Caulkins v. Hellman, 47 N. Y. 452,) "but a receipt and acceptance of them by the vendee liable for the price; and this acceptance must be voluntary and unconditional. Even the receipt of the goods, without an acceptance, is not sufficient. Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them, is required to supply the place of a written contract." By the terms of the contract in the present case the wool was to be delivered by the plaintiffs to the defendants at the railroad depot in Merced; but, as has been seen, until there was a receipt and acceptance on the part of the vendee, the contract was invalid in law. That the wool was not accepted on the part of the defendants because of its alleged dampness, clearly appears from the evidence. Indeed, the objection of defendants' agent to accepting the wool is admitted in a letter put in evidence from the plaintiff Jamison, to his co-plaintiff, Stewart, in which Jamison says: "The wool is damp. Mr. Simon wants me to discount twenty-five pounds on the bale. I am not willing to do it. We have agreed to wait eight or ten days after the rain is over, to weigh the wool if the dampness is all out of it.” The evidence further shows that at the expiration of the time agreed on, Simon still refused to accept the wool, and the plaintiffs then sold it in Merced at the highest price obtainable, and brought this suit to recover the difference between the amount realized by the sale and the amount the wool would have brought at the price fixed in the oral agreement with the defendants. But as there was no acceptance of the property on the part of the defendants the case comes within the statute of frauds, and the action cannot be maintained.

Judgment and order reversed, and cause remanded.

We concur: MCKEE, J.; McKINSTRY, J.

NOTE.

Sale of Chattels-Statute of Frauds-Delivery.

A sale of chattels, where the price is not paid, and the goods are not actually delivered, in the absence of a written contract, is within the statute of frauds, and void as to creditors. Hickok v. Buell, 2 N. W. Rep. 512; S. C. 51 Iowa, 655. But an oral contract may be taken out of the statute by a written admission in a letter to a third person. Warfield v. Wisconsin Cranberry Co., 19 N. W. Rep. 224; S. C. 63 Iowa, 312.

Where the contract for the sale of goods is oral, and no part of the price is paid, there must be not only a delivery of the goods by the vendor, but the receipt and acceptance of them by the vendee, to pass the title, or make the vendee liable for the price. Ex parte Parker, 9 N. W. Rep. 33; S. C. 11 Neb. 309. And under a statute of Iowa, providing that no evidence of any contract for the sale of personal property is competent when no part of the property is delivered and no part of the price paid, it was held that a delivery of the goods by the vendor to a common carrier is a delivery to

the vendee sufficient to take the contract out of the statute of frauds. Bullock v. Tschergi, 13 Fed. Rep. 345.

It is held that to constitute a delivery the goods must be set apart, Galloway v. Week, 12 N. W. Rep. 10; S. C. 54 Wis. 604; Hoffman v. King, 17 N. W. Rep. 136; S. C. 58 Wis. 314; Carpenter v. Graham, 3 N. W. Rep. 974; S. C. 42 Mich. 191, with the vendor's knowledge and consent. Galloway v. Week, 12 N. W. Rep. 10; S. C. 54 Wis. 604. Appropriation of goods is acceptance thereof. Wellauer v. Fellows, 4 N. W. Rep. 114; S. C. 48 Wis. 105. Where there is a verbal order for several articles, the acceptance of a part of them, though shipped at different time from the others, will make the entire contract valid. Farmer v. Gray, 20 N. W. Rep. 276; S. C. 16 Neb. 401. Where a part only of the goods sold is separated from the bulk, there is no delivery of any except that part actually separated. Holmes v. Bailey, 20 N. W. Rep. 304; S. Č. 16 Neb. 300. But it has been held that the pointing out of hogs sold, which were then accepted, although permitted to remain among and be fed with other hogs in the same drove, is a valid delivery. Webster v. Anderson, 4 N. W. Rep. 288; S. Č. 42 Mich. 554. It is the fact of delivery under and in pursuance of the agreement of sale, not the time when delivery is made, that the statute of frauds renders essential to the proof of a valid contract. So that a delivery at a future day is sufficient if made in pursuance of the contract; and, upon the same principle, the place of delivery can make no difference. Somers v. McLaughlin, 15 N. W. Rep. 442; S. C. 57 Wis. 358.

(67 Cal. 652)

DENT V. BIRD. (No. 8,791.)

Filed November 19, 1885.

1. ADMISSIBILITY OF DEED-WHETHER INCLUDES LOCUS IN QUO.

Where a deed is offered in evidence to show title to the locus in quo, an offer by the adverse party to prove that such deed was not intended to include the premises in dispute goes only to the effect of the deed, and not to its admissibility as evidence.

2. DEEDS-PAROL EVIDENCE TO VARY.

The terms of a written instrument cannot be varied or contradicted by pa rol evidence. Evidence may be admissible of the circumstances surrounding the maker of the instrument; but parol evidence of language declaring his meaning other than that contained in the instrument is not admissible, and therefore, when the language of deed is unambiguous and admits of but one construction, no parol evidence is material to its construction, and it would not be error to reject evidence offered for such purpose.

3. DEEDS EVIDENCE OF INTENTION OF GRANTOR INADMISSIBLE.

Though a deed be silent as to the quantity of land intended to be conveyed, the description being broad enough to include both high lands and marsh lands, yet parol evidence is inadmissible to show the intention of the grantor to exclude such marsh lands.

Department 1. Appeal from superior court, county of Alameda. George W. Tyler and John T. Humphreys, for appellant.

B. S. Brooks, Geo. Leviston, Mastick, Belcher & Mastick, and Greathouse & Blanding, for respondent.

Ross, J. The subject of this controversy is a part of that portion of the Rancho San Antonio, situated in what is now the county of Alameda, which was confirmed and patented by the United States government to Antonio Maria Peralta, under whom both plaintiff and defendants claim title,-defendants, through a deed executed by Peralta on the twenty-third of October, 1851, to William A. Chipman and Gideon Aughinbaugh; and plaintiff, by virtue of a deed executed by Peralta on April 8, 1868, to George W. Dent and Thomas Wallace. At the time of the deed to Chipman and Aughinbaugh, Peralta's title rested upon the grant from the Mexican government, but its subsequent confirmation and patent by the government of the

United States inured to the benefit of his grantees, and determined as well the validity of the grant as its boundaries. Admittedly the land in dispute, which is marsh land, is within the patented lines; so that the real question in the case is whether it falls within the descriptive calls of the deed to Chipman and Aughinbaugh. The description is:

"All that tract or parcel of land situated in the township of San Antonio and in the county of Contra Costa, and known by the name of Bolsa or Peninsula del Encinal, being part of the Rancho de San Antonio, and property of A. M. Peralta, granted, etc. * **Said Encinal is almost all surrounded by the sea water, having a single entrance or mouth on the northeast side. Said mouth or entrance is to be fenced and gated by said parties of the second part immediately [upon] taking possession, from the point or end of the San Leandro slough, or Estero de San Leandro, to the point or end of San Antonio slough, or Estero de San Antonio, a distance from point to point of about one thousand yards, more or less, and said line for the fence [to] run about three hundred yards from the brickyard house, with the purpose of preventing the entrance of the cattle of said A. M. Peralta, and of his heirs, executors, or assigns, and for not doing so said William W. Chipman and G. Aughinbaugh, their heirs or assigns, are bound to pay all damages unto said A. M. Peralta, his heirs, executors, or assigns.

Plaintiff's counsel objected to the introduction of this deed when offered by defendants, "upon the ground that it did not include the lands described in the complaint, as by its terms it only purported to convey the part of the bolsa or peninsula covered with oak timber; and in this connection offered to prove the following facts: First. That at the time of the execution of the said deed, and prior thereto, it was supposed by the grantor and grantees of said deed that there were about twenty-two hundred acres of high land upon the peninsula. Second. That shortly after said deed was executed, the grantees of said deed, in conveying one-fourteenth of their interest, spoke of the amount as one hundred and forty acres of land, more or less. Third. That at the time of the execution of said deed, and prior thereto, it was understood by the grantor and grantees of said deed, and by all other persons in the neighborhood, when speaking of the Bolsa de Encinal,' that the high land, or land covered with oaks, only was meant, and not the salt marsh or tide-lands on the peninsula. Fourth. That once in every twenty-four hours, and at high water-mark, the waters of the ocean came up within twenty feet of the line between the firm land and the salt marsh and tide-land on the south line of the land described in the complaint, along the line of segregation between the high land and the salt marsh and tide-lands of the peninsula referred to and shown in defendant's Exhibit A, and that has been so at all times from 1850 down to the present day. Fifth. That the high lands on the peninsula or bolsa were, at the time of the execution of said deed, excepting a strip along the north side of the high land, of about three hundred feet wide, covered with oak trees, resembling a grove from a distance. Sixth. That the high land of the peninsula at the time of the execution of said deed

was about nineteen hundred and ninety-four acres. Seventh. That the whole land on the peninsula, high land and salt marsh and tideland, at that time was something over three thousand three hundred acres. Eighth. That all the land described in the complaint was salt marsh and tide-land."

The defendants objected to each and all of the foregoing proofs as offered by plaintiff. As is well said for respondents, the matters offered to be proved by the plaintiff would not go to the admissibility of the deed, but, at most, to its effect. For this reason the court below was right in overruling the objection to the introduction of the deed. But treating the offer to prove the matters enumerated as made in rebuttal, the judgment should not be disturbed if the admission of such proof as was offered could not have affected the result. Parol evidence is never permitted to vary or contradict the terms of a written conveyance. While evidence is admissible of all the circumstances surrounding the maker of the instrument, parol evidence of language, declaring his meaning other than that which is contained in the instrument itself, is not admissible. 1 Greenl. Ev. §§ 169, 287, 288. If, therefore, the language of the deed in question is unambiguous and admits of but one construction, it is obvious that no parol proof could be material to its construction.

It is said for the plaintiff that the deed by its terms only purported to convey the part of the bolsa or peninsula covered with oak timber. Clearly, this is not so, for the deed in terms declares: "Said Encinal [that is, the Encinal previously referred to therein as the Bolsa or Peninsula del Encinal] is almost all surrounded by the sea-water, having a single entrance or mouth on the north-east side." The grantor having thus expressly declared in his written conveyance that the Bolsa or Peninsula del Encinal "is almost all surrounded by the sea-water, having a single entrance on the north-east side," it is very clear that to permit parol proof that at the time of the execution of the instrument he understood, when speaking of the Bolsa del Encinal, "that the high land, or land covered with oaks, only was meant," would be to permit the written instrument to be varied and contradicted by parol. A fortiori, as against the written declaration of the grantor, would the understanding of "all other persons in the neighborhood" be inadmissible.

But the intention of the grantor to convey by the deed all of the Bolsa or Peninsula del Encinal is, if possible, made still more manifest by the further provision contained in the deed that "said mouth or entrance is to be fenced and gated by said parties of the second part immediately [upon] taking possession, from the point or end of the San Leandro slough, or Estero de San Leandro, to the point or end of San Antonio slough, or Estero de San Antonio, a distance from point to point of one thousand yards, more or less, and said line for the fence [to] run about three hundred yards from the brickyard house, with the purpose of preventing the entrance of the cattle of