46 Colo. 37 | Colo. | 1909
delivered the opinion of the court:
The Pawnee Land & Canal Company, which is referred to herein as the “old company,” owned an irrigating canal in Logan county, through which it made two distinct appropriations for irrigating purposes. It sold rights to the use of water carried by the ditch, with the understanding that when three-fourths of its estimated capacity were sold, the purchasers should become entitled to a deed from the appropriating, to a new, company, to be formed by them for that purpose, conveying the same, and all its appurtenant water rights and other property. The contingency contemplated having arrived, the new company was formed by the purchasers, called The Farmers ’ Pawnee Canal Company, which is designated as the “new company.” Certain differences existed between the interested parties which were finally settled. This adjustment took the form of a written contract between Willard Teller, in whose name all the capital stock of the old company stood, and the new company. It provided, inter alia, that Teller should cause the old to convey to the new company all the property of the former, on the express condition and consideration that the new company should sell and convey to him, “for the stockholders of the old company, fifty full-paid water rights of the new company; which, though they could
. Such only of the propositions argued as we think controlling, will be considered. The others are not overlooked, but we regard them either as not pertinent, or not important, and their resolution, either way, would not affect our decision.
The first contention is, that the complaint, as amended, does not state facts sufficient to constitute a cause of action. It is said that the complaint, which recites the agreement, entered into between Willard Teller and the new company, shows on its face that the exemption from assessment was limited to Willard Teller himself, and that when he transferred, or assigned, the same to The Henry Invest
The ordinary meaning of “assigns” is any person to whom- property is transferred by any title; Yet it is competent to show by oral evidence that the word as used was intended by the parties to this agreement to be restricted to The Henry Investment Company, the real owner of the stock — which the clause, “or until the same have been actually sold to other parties ’ ’ itself tends to prove — and that the same exemption from assessment was to attach to
' The evidence produced, as indicated, was abundantly sufficient to sustain the decree. Since we have just held that oral testimony was competent and admissible to show the real nature of the transaction, that The Henry Investment Company was at the time the real owner of the stock, and that the parties intended the word “assigns” to apply to it only, and as the water which this stock represents had never been used either by Teller or The Henry Investment Company, it follows that the assessments levied-by defendant upon this stock were clearly unauthorized as being in direct violation of the terms of its agreement.
The further point that the contract in question does not control the rights of the-parties is without merit. The argument is, that when the new company
Defendant further contends that plaintiff, the pledgee of The Henry Investment Company, may not, though The Henry Investment Company might, maintain the action. It is true that, when plaintiff received the stock as collateral security, being then a stockholder of defendant company, he was charged with knowledge that under its by-laws it might levy assessments upon stock for the maintenance and operation of-its ditch. But the mere fact that Teller received these shares of stock, instead of a deed for the water rights to which he was entitled under the contract, did not give the company the right to- disregard its contract and levy assessments upon him or The Henry Investment Company, so long as they did not use the water. Plaintiff also1 knew that the defendant had agreed not to assess this stock while Teller and the investment company held it, and did not use water.
That equity will grant such relief seems clear. At least defendant has not made the point that some other remedy is adequate, and itself prays equitable relief in the cross-complaint. Different courts have applied different remedies. Some have said that an action at law for damages for a refusal to make.the transfer is adequate; others, that a writ of mandamus is appropriate; still others, that equity will afford relief.—26 Am. & Eng. Enc. of Law (2d ed.), 882-3; 1 Cook on Stockholders (4th ed.), § 390 et seq. Since plaintiff asks that the assessments in question be adjudged void, and defendant prays that they be adjudged valid, a clear ease for equitable relief is
The judgment below was right, and is affirmed.
Affirmed.