Maria Hall, Respondent, v. John C. Minturn, Administrator, etc., Appellant; Anna Hall, Respondent, v. Same, Appellant; Maria Hall and Anna Hall, Respondents, v. Same, Appellant

Maria Hall, Respondent, v. John C. Minturn, Administrator, etc., Appellant. Anna Hall, Respondent, v. Same, Appellant. Maria Hall and Anna Hall, Respondents, v. Same, Appellant. (Argued December 22, 1873; decided January 27, 1874.) These were actions upon various joint and several promissory notes, of which defendant’s intestate, Charles Minturn, was one of the makers. By the act incorporating the town of Oakland, Contra Costa county, California, its board of trustees were invested with power to regulate ferries, wharves, bridges, etc., and to authorize the construction of the same. On the 12th March, 1853, said board of trustees granted to Edward R. Carpen tier the right to establish and maintain a ferry between said town and San Francisco, for the term of twenty years; by the terms of the grant or license it was exclusive. At that time, Horace W. and Harriet H. Carpentier were owners of the water-front in said town, and of the wharves and piers. On the 21st October, 1854, the said Carpentiers entered into a written agreement, by which they, as parties of the first part, assigned to defendant’s intestate all the rights derived under and by said license or grant, together with the exclusive use of the docks, wharves, piers, etc., requisite and necessary for the accommodation of the ferryboats and for ferry purposes. Minturn and his associates, as parties of the second part, agreed to furnish the boats and run the ferry in accordance with and subject to the terms of the town license, and to pay to plaintiffs six per cent of the gross receipts. Under this agreement, the parties of the second part opened and ran the ferry for a number of years. The notes in suit were given for a portion of the per centage so agreed to be paid. Subsequent to the opening of the ferry, another ferry was established. An action was brought by the then owner of defendant’s ferry to restrain the owners of such new ferry from running their boats. It was decided therein that the town of Oakland was not authorized to grant to Carpentier the exclusive privilege. The principal defence relied upon here was failure of consideration; that the contract purported to transfer an exclusive privilege, and that, as the town of Oakland had no authority to grant such exclusive privilege, the agreement between it and Carpentier was wholly illegal and void, it being an attempt to establish a monopoly. Held, that the license from the town was good to the extent of the right of the town; that the assignment to Minturn and others only purported to transfer such rights as Carpentier acquired under it, but that, if the assignment of the license furnished no consideration, the exclusive use of the docks and piers did, and that, in any event, Minturn was not justified in retaining the proportion of the receipts under the contract which he had agreed to pay over, as the agreement was binding upon him so long as he acted under it. 8. P. Hash and Charles H. Black, for the appellant. John K. Porter for the respondents. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for affirmance.. All concur. Judgments affirmed.