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ages but that the relief sought relates to "the contract or transaction upon which the action is brought," it follows that the cross-complaint would have been invulnerable as against a general demurrer, had one been filed. The judgment, therefore, must be reversed as to the appellant Edwin A. Meserve unless his cross-complaint is obnoxious to plaintiff's special demurrer, i. e., unless it is indefinite and uncertain in the particulars set forth in that demurrer.

Proceeding now to a consideration of the particulars enumerated in the demurrer as those in respect to which it is claimed there is indefiniteness and uncertainty. [2] The cross-complaint is not demurrable for uncertainty or indefiniteness merely because it does not state the precise times when plaintiff negligently permitted its canals to become filled with weeds and growth or when it undertook to carry water through its canals and deliver it to defendants. These are matters which rest peculiarly within the knowledge of plaintiff. Neither is the cross-complaint indefinite or uncertain because the lands to which plaintift undertook to carry water are not specifically described, nor because the precise amount of profit which cross-complainant would have realized had his land not been wrongfully overflowed is not alleged. By averring that the waters which plaintiff alleges were sold and delivered to defendants are the "same” waters which overflowed cross-complainant's land and destroyed his crops, the cross-complaint plainly identifies the crops and the land whereon they were grown. [3] And when it further is alleged that the overflowing of this land and the “scalding" of the alfalfa damaged these crops in an amount equal to $3,000, it is made to appear, from the allegations of the cross-complaint read as a whole, what was the nature, source, and extent of crosscomplainant's damage. More than this was not requisite. All that is required of a plaintiff, even as against a special demurrer, is that he set forth in his complaint the essential facts of his case with reasonable precision and with particularity sufficiently specific to acquaint the defendant of the nature, source and extent of his cause of action.” (Goldstein v. Healy, 187 Cal. 210 [201 Pac. 463].) It follows that the demurrer to the cross-complaint should have been overruled, and that the order sustaining it was error prejudicial to the appellant Edwin A. Meserve.

[4] Reversible error also was committed with respect to the appellant Harry W. Meserve. The situation presented by this case differs from that which was before us in the companion case. The two actions differ in that here the defendants did not jointly participate in farming the land to which the water was delivered, nor did they agree to participate jointly in a division of the crops or in the profits which it was expected would be derived therefrom. Here the land was farmed by but one of the defendantsthe defendant Smith-who leased it from the owner, the defendant Edwin A. Meserve. Harry W. Meserve's sole connection with the 320 acres lay in the fact that, as his brother's agent, he represented the latter in certain matters relating to the land. He testified that in all his dealings he was acting for his brother and not for himself. This testimony was not contradicted. If Harry W. Meserve incurred any liability whatever to plaintiff it was that of a guarantor and not that of a purchaser of water primarily liable therefor. The land having been leased by Edwin A. Meserve to Smith, the water was delivered in virtue of the former's ownership of the water right represented by his 320 shares of plaintiff's capital stock. Some six or seven weeks before Edwin leased the land to Smith, Harry signed and delivered to plaintiff, on what evidently was one of plaintiff's blank order-forms, the following order for water:

“Brawley, Cal., August 13, 1912. "Order of Owner. To Imperial Water Co. No. 4:

You are hereby authorized to deliver water, under the rules and regulations of the company, to D. L. Smith and A. G. Grenagle, who are my tenants, as ordered by them, and I hereby guarantee the payment thereof. The property on which this water is to be used is tract #133 by the Official Resurvey. T. 13 S., R. 14 E., S. B. M.

“H. W. MESERVE. "Note: This order must be signed by the party in person or his agent duly authorized in writing.

It is true that in this document Harry W. Meserve refers to Smith and Grenagle as “my tenants. But the document specifically declares that the liability which Harry undertakes is that of a guarantor. It does not fasten upon him the liability of a purchaser of water nor even that of a landlord ordering water by reason of his status as a stockholder in the plaintiff corporation. He does not undertake to order water either for himself or for those whom he inaccurately refers to as his tenants. What he does do is to authorize the company to deliver water to Smith and Grenagle "as ordered by them." It is for water thus to be ordered by Smith and Grenagle that Harry W. Meserve guarantees payment.

Plaintiff offered the order in evidence. Defendants objected upon the ground that it was incompetent, irrelevant, and immaterial. It was further objected to by Harry W. Meserve upon the ground that "he is not sued here as a guarantor, but as a purchaser of water." The objection was overruled and the order admitted in evidence.

The contract of guaranty evidenced by this document seems to be the sole basis for any liability on the part of Harry W. Meserve. Without considering whether the instrument was admissible as against Edwin A. Meserve we think it clearly was inadmissible as to his brother Harry. The contract of guaranty was not the contract alleged in the complaint. Under the contract of sale upon which plaintiff brought its action the undertaking of each defendant was direct and primary. Under that contract, had plaintiff proved it to have been made as alleged in the complaint—that is, had it proved that the three defendants purchased the water-all of the defendants, Harry W. Meserve included, would have been bound as original obligors, and there would have devolved upon them a primary obligation to pay for the water. But the contract of guaranty which the plaintiff sought to fasten on Harry W. Meserve was the latter's separate contract and was wholly distinct from the contract of sale alleged in the complaint. Non constat but that if plaintiff had brought its action against Harry upon the latter's contract of guaranty he could have pleaded and proved a good defense thereto. The contract of a guarantor

is his own separate contract; it is in the nature of a warranty by him that the thing guaranteed to be done by the principal shall be done, and is not an engagement jointly with the principal to do the thing. He is not a joint contractor with his principal. He is not primarily bound to do what his principal has contracted to do, but only to answer for the consequences of the latter's default. His is an independent contract with which his principal has nothing to do. His liability is secondary, and his contract is collateral to that of his principal. (Adams v. Wallace, 119 Cal. 68, 71 (51 Pac. 14]; Kinsel v. Ballou, 151 Cal. 762 [91 Pac. 620]; Cooke v. Mesmer, 164 Cal. 332, 340 (128 Pac. 917]; Schehr v. Berkey, 166 Cal. 161 [135 Pac. 41]; Withers v. Bousfield, 42 Cal. App. 304, 319 [183 Pac. 855] ; Kelley v. Goldschmidt, 47 Cal. App. 38 (190 Pac. 55]; Virden v. Ellsworth, 15 Ind. 144; Shore v. Lawrence, 68 W. Va. 220 (69 S. E. 791]; Bodine v. Times-Journal Publishing Co., 26 Okl. 135 [31 L. R. A. (N. S.) 149, 110 Pac. 1096).) “There is no privity, or mutuality, or joint liability between the principal debtor and his guarantor." (Adams v. Wallace, supra.)

62 Cal. App.-39

Harry W. Meserve having been sued upon a contract under which, had it been proved, he would have been liable as an original obligor jointly with his two codefendants, it was error to enter a judgment against him upon a liability created by an entirely distinct and independent contract to the admission of which he made due and timely objection.

The judgment is reversed.

Works, J., and Craig, J., concurred.

[Civ. No. 4417. First Appellate District, Division Two.—June 20,


ISAAC RALPHS et al., Respondents, v. BERTHA OBER


EXTENSIONS OF TIME-PRESUMPTION.- Where a bill of exceptions for use

on appeal is settled over the objection of counsel for plaintiffs that the same was not engrossed and presented for certification within the time allowed by law, and the certificate affirmatively shows that certain extensions of time were granted by the trial court and that thereafter counsel for plaintiffs granted an extension of time, and such certificate does not negative the fact that counsel for plaintiff's did not give defendant an additional extension of time within which to engross and present the bill of exceptions, or that the court did not make an additional order extending defendant's time, it will be presumed on appeal, in support of the certificate of the trial judge, that defendant's time to engross and present the bill of exceptions was properly

extended. [2] CONTRACTS—EXTENSION—EVIDENCE-FINDINGS.-In this action on

a contract guaranteeing the payment of goods sold by plaintiffs to certain agents under a specified sales agreement, which sales agreement expressly stated that it was for a term of one year, but provided for its extension at the expiration thereof, the evidence having shown that at the expiration of the year the sales agreement was not extended, but that plaintiffs merely continued to sell and deliver goods to their former agents, of which fact defendant had no knowledge or notice, the trial court was not justified in finding that the term of such sales agreement was extended.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. E. P. Shortall, Judge. Reversed.

The facts are stated in the opinion of the court.

Jesse H. Miller and Edward J. Linforth for Appellant.

Frank A. Duryea for Respondents.

STURTEVANT, J.-In this action the plaintiffs sought to recover judgment against the defendant on a written guaranty; the defendant answered and thereafter a trial was had before the court sitting without a jury. The trial court made findings in favor of the plaintiffs and awarded the plaintiff's a judgment, and the defendant has appealed, bringing up a bill of exceptions.

The respondents have interposed a preliminary objection which must be disposed of at this time. [1] The respondents objected to the use of the bill of exceptions by the appellant and to the consideration of the bill by this court. The objection is based on the contention that after the bill had been settled it was not engrossed and presented for settlement within the time allowed by law. To support their objection the respondents presented for our consideration the certificate settling the bill. That certificate is as fol

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