Consolidated Canal Co. v. Peters, 46 P. 74

Consolidated Canal Co. v. Peters

46 P. 74

| Ariz. | 1896

HAWKINS, J.

(after stating the facts).—I do not deem it necessary to review the action of the court below in sustaining the motion of plaintiff, after the evidence was closed on the trial of the original complaint, to be allowed to amend his complaint. This action was in the discretion of the court below. The contract set out in the amended complaint was executed on the 30th of September, A. D. 1892, and declared to be for the ensuing year. In the closing part of the third subdivision of said complaint it is alleged that the said contract was made for “the crop-raising season of 1892.” This is probably a clerical error. If I so treat it, then the pleadings should be considered on their merits. It is shown on the face of the complaint that the plaintiff and others therein named were shareholders in an unincorporated joint-stock company; and it sets out a contract made by the several individual stockholders with the defendant to do certain things. As the shareholders in such a company are partners (Lindley on Partnership, p. 5; Smith v. Warden, 86 Mo. 382; Richardson v. Pitts, 71 Mo. 128; Martin v. Fewell, 79 Mo. 401; Hurt v. Salisbury, 55 Mo. 310; Pettis v. Atkins, 60 Ill. 454; Flagg v. Stowe, 85 Ill. 164; Hodgson v. Baldwin, 65 Ill. 532), and, as a general rule, the members, however numerous, must join in the suit on such contract (Dicey on Parties, 151), yet, as the contract in the ease at bar shows that the parties of the second part rented their respective shares to the party of the first part, and “party of the first part agrees ... to deliver water to the respective parties,” it must necessarily be construed as a contract wherein, if any damage occurred thereunder to any *88of the parties thereto, such party could maintain his suit for such damages without joining the other parties. "Whether a contract is several or joint is a question of construction. Generally, where- there are joint obligees the contract is joint. Where, however, the language of the contract requires the obligor to account to each of the obligees, respectively, or, by the use of any words, imports a separate right of action, the contract is several, and each obligee may sue thereon. . Lawless v. Lawless, 39 Mo. App. 539; 17 Am. & Eng. Ency. of Law, 566. Joint-stock companies and unincorporated companies, as will be seen from the authorities supra, are generally treated as, and have all the attributes of, a common partnership, yet a mere joint ownership or community of interest in property does not necessarily constitute a partnership, though the income from it is divided. 17 Am. & Eng. Ency. of Law, p. 859. And even if the association of persons described as the party of the “second part” in the contract with the appellant do constitute a partnership, an obligor may render himself liable to each individual member of the partnership separately, as was done in the contract set out in the amended complaint. The objection that there was a nonjoinder of parties plaintiff is not, for the reasons above given, well taken, and the court below did not commit error in overruling it.

If the contract be construed as one for the delivery of so much water to each individual of the second part, and that each one could maintain an action thereon, without joining the others with him, for the damages he might have sustained, the complaint in this case fails to state a cause of action, for nowhere therein is it alleged that plaintiff ever requested defendant to deliver water to him at any place. It is not alleged that plaintiff did not get all the water he contracted for. It is alleged that defendant failed to deliver water on section 17 sufficient to raise a crop, but it does not appear from the contract that the water was to be delivered on that section. Defendant may have delivered it to plaintiff at some other point. It is further alleged that defendant did not deliver sufficient water. The quantity necessary to irrigate plaintiff’s land is not stated in the complaint, nor is the quantity which the defendant did deliver stated, nor is the difference capable of being computed. It is nowhere stated in the contract on what land, or where, the water should be delivered by defendant. *89The complaint states that the premises described therein, and on which it was claimed defendant failed to deliver the water, was a part of the premises upon which the water was to be delivered; and though the complaint states that it failed to deliver sufficient water upon that part to raise a erop for the cropping season of 1892-1893 (which the contract nowhere binds the defendant to do), it does not state that all the water plaintiff was entitled to receive from defendant was not delivered on the other part or parts of the premises. But if we construe the following allegation in the complaint: “And failed, neglected, and refused to deliver to said plaintiff, upon said premises (section 17), sufficient water to irrigate the crops growing upon said premises, when, during the crop-raising season of 1892-1893, there was flowing in said Salt River, at a point where the same could be diverted therefrom to said premises, water sufficient for said purpose,” etc.,— into an allegation that there was such quantity of water in the river as contemplated there should be by the terms of the contract, yet the complaint further states that at periods of low water the defendant refused to deliver that amount of water which the Utah Canal would or could deliver to plaintiff if it (the Utah Canal) was in full control; but nowhere is there any allegation as to how much, or whether any quantity, could or would have been received by the plaintiff from said Utah Canal. A complaint that totally fails to state a breach of the contract sued on states no cause of action, and a failure to state a cause of action may be availed of by demurrer, by objection to evidence, by motion for judgment on the pleadings, by motion in arrest of judgment, or on motion for a new trial. This suit seems to have been prosecuted upon the theory that the defendant was bound, under the contract, to deliver sufficient water to plaintiff to raise a erop for the season named upon the land described in the complaint. While the contract was made, evidently, for the purpose of conferring the power of voting the shares on the question of assessment and distributing the water to the respective parties (share-owners) which flowed through the canal as a conduit the quantity of water which was to be distributed was the quantity which would flow though said conduit. This is nowhere alleged in said complaint, nor is it susceptible of being ascertained from the allegations thereof. In times of low water *90in the river the defendant was only to secure the amount that would flow through said canal, and distribute that. If the defendant failed to distribute the water, he would be liable. And the shareholders could declare the contract forfeited, and take possession of their canal, if the same was in the possession of the defendant; and any party to such contract could recover his damages from the defendant for any breach while the contract was in force, if any occurred.

The general demurrer should have been sustained. Reversed, and new trial ordered, with directions to the court below to sustain the demurrer to the amended complaint.

Bethune, J., and Rouse, J., concur.