No. 6125 | Cal. | Jul 1, 1878
The appeal is taken from an order dissolving an injunction. The complaint does not state a cause of action. It is not alleged that the defendant has broken the contract under which the plaintiff claims the eighty-five and one-half cubic feet of water, but only that the defendant is about to enter into other contracts for the delivery of water to other persons, whereby the defendant will have contracted for the delivery of more water in the aggregate than the capacity of its ditch will enable it to supply. But even if this be true in point of fact, it does not follow that the plaintiff will be injured thereby, nor can it be intended that the defendant will fail or refuse to deliver to the plaintiff the quantity of water claimed in the complaint. The number of contracts in which the defendant is about to enter, and the quantity of water it is about to engage to deliver, are therefore matters which do not concern the plaintiff, in a legal point of view.
We think that there is nothing in the complaint entitling the plaintiff to an injunction, and that the injunction was correctly dissolved.
It is proper to remark, however, that this disposition of the appeal in no way affects the substantial rights, if any, of the plaintiff, to the water in question, and that the defense set up in the answer, or attempted to be set up, to the effect that the contract between Chapman and the defendant was fraudulent, does not constitute an element of the judgment rendered here. If the defendant should refuse to deliver the water claimed by the plaintiff, and should seek to justify the refusal by setting up that the contract with Chapman was fraudulent in its character, it will then be proper to consider of that defense.
Order affirmed.