28 Mont. 255 | Mont. | 1903
prepared the opinion for the court.
This is an action upon a written contract, by which it is claimed that respondent agreed to furnish certain water to D. EL Ueuninck for the purpose of irrigating 129 acres of his land. The complaint sets forth the contract, and then alleges that, in reliance upon its terms, plaintiffs prepared their land for culti
The contract sued upon'is somewhat peculiar in its provisions, and for a better understanding of all its terms we quote it in full:
“Bozeman, Montana, June, 20th, 1899. This is to certify: That the West Gallatin Irrigation Company has this day received from Bev. D. El Deuninck the sum of Two Hundred and Pifty-Eight Dollars ($258.00) upon the following conditions, to-wit: Said West Gallatin Irrigation Company agrees to furnish to said D. El Deuninck 129 inches of water for the irrigation of 129 acres of the land of said D. El Deuninck, or any part of the same situate convenient for delivery for service from the ditch of the West Gallatin Irrigation Company, in the East y¿ of Sec. 24, T. 1 S., B. 8 East, said water to be furnished and delivered during the irrigating season of 1899. If, however, said company shall for any reason fail or be unable to deliver said water to said D. E. Deuninck, according to the terms hereof, it agrees and binds itself to return to said D. E. Deuninck — $258.00—the amount of money so paid, and- said D. El Deuninck agrees to accept the same and! to release and hold harmless the said company for any loss or damage arising from its failure or inability to furnish said water or any part thereof as aforesaid. It being specifically understood and agreed between the parties hereto- that the said West Gallatin Irrigation Company is liable, for various causes, to be unable to' furnish the said water as herein set forth, and that in the event of such failure or inability to furnish the same and of damage accruing
The questions argued all arise upon the construction of this contract, and the appropriateness and sufficiency of the allegations of the complaint as applied to the contract when construed. Counsel for appellants contend: First, that this contract is void under the provision of Section 2243, Civil Cbde, to the extent that it attempts to fix the amount of damages for a breach thereof in anticipation of such breach; and, second, if not void, the provisions for the return of the money in case of a breach of -its terms do not constitute legal liquidated damages, as provided in Section 2244, Civil Code, and claim that appellants are therefore entitled to> recover whatever actual damage they have suffered because of the alleged breach thereof by respondent. Counsel for respondent contend to the contrary upon both of these propositions. The two sections above referred to are as follows:
“Sec. 2243. Every contract by which the amount of damage to be paid, or other compensation, to be made, for a breach of an obligation,- is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section.
“Sec. 2244. The parties to a contract may agree therein u pun an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the ease, it would be impracticable 'or extremely difficult to fix the actual damage.”
It first becomes important to determine the character of the contract, and’ascertain whether it is one attempting to provide
It seems to us, from a careful consideration of the contract,' that it falls clearly within the provisions of Section 2243, swpra, and is, therefore void to the extent of the liquidated damages agreedl upon in ease of a breach. If the contract is void in law tci this extent, it is of the same legal effect as though such 'provisions had been entirely omitted from its terms. It therefore was, in legal effect, a contract to furnish 129 inches of water during the irrigating season of 1899 for the purpose of irrigating 129 acres of land. The complaint .was evidently framed upon this theory, and is clearly sufficient: ■ ■
As to the next contention, counsel for respondent claim that,; even if it is- a contract 'attempting to provide for liquidated damages for a breach, and is void to- that 'extent-, under the provisions of Section 2243, supra, it is a good contract for liquidated damages under Section 2244, supra; that the suit- should have been brought to recover such liquidated damages; and, inasmuch as the complaint is not framed on that theory, the demurrer was properly sustained. Counsel seem to overlook the effect of Section 2243, supra, by which all contracts for liquidated damages are to that extent void, “except as provided in the next section.” Therefore, if a suit be brought on the contract for the actual, and not the liquidated, damages, defendant must show to the court as a matter of defense that it is errone
We are of the opinion that the court below erred in overruling said demurrer and entering judgment for defendant, and that the same should be reversed.
Pee C'ubiam. — Por the reasons stated in the foregoing opinion, the judgment of the court below is reversed.