206 P. 1061 | Wyo. | 1922
By a written contract of lease the plaintiff rented to defendant for one year from the first day of March, 1919, certain described land in Big Horn County, “together with sufficient water from the Lewis extension of the R. Bahr Canal to irrigate” the same, for the sum of Five Hundred dollars, “payable December 1, 1919, for which amount-Lessee shall give to Lessor his note, dated March 1, 1919, with interest at 6% from date.” The note was executed and delivered to plaintiff by the defendant; and this suit was brought upon the note to recover the full amount of principal and interest.
The defendant’s answer admits the execution of the note, and alleges as a defense thereto, in substance, that the plaintiff agreed and covenanted to furnish the defendant with sufficient water to irrigate the land; that the amount of water furnished was insufficient, causing the loss of a large part of defendant’s crops and a net damage to him of $1997.50, after deducting the alleged value of the use of pasture upon the premises. And judgment was prayed for that amount, less such sum as may be found due to plaintiff.
The plahitiff replied, denying that she agreed to furnish sufficient water to irrigate the land and alleging that when
The case was tried to a jury, and at the close of the evidence the plaintiff moved that the jury be instructed to return a verdict in her favor for the amount claimed in the petition. That motion was overruled, the plaintiff excepting thereto, and the verdict was for the defendant, assessing his damages in the sum of one dollar. Thereupon plaintiff filed a motion for judgment non obstante veredicto upon the ground that upon the pleadings and the evidence the plaintiff was entitled, as a matter of law, to recover the full amount due upon the note sued upon, including interest and attorney’s fees. That motion was sustained by the trial court and judgment was ordered and thereupon entered in favor of the plaintiff for the amount so claimed.
The first contention of counsel for plaintiff in error is that the trial court erred in considering the evidence in the case upon the motion for judgment non obstante veredicto, and that such a judgment is authorized only under Section 4624, Comp. Stat. 1910, now Section 5895, Comp. Stat. 1920, which provides that, “when, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party.” That is one of the original sections of our code of civil procedure, and it may be conceded that until 1915 it was the only authority for such a judgment where there was merely a general verdict. But a statute was enacted in that year (L. 1915, Ch. 134), now Section 5897, Comp. Stat. 1920, under which the trial court evidently acted, providing as follows:
“When, in the trial of a civil action, a motion is made by either party that a verdict be directed in favor of such party, or an instruction to that effect is requested, and the motion or instruction is denied, the trial court, on motion of such party for a new trial or for judgment notwithstanding the verdict, may order judgment to be entered in favor of the party who was entitled to have a verdict directed in his favor; and the Supreme Court, in reviewing the judgment upon exceptions and error, may order and direct judgment to be entered in favor of the party who was entitled to have such verdict directed in his favor, whenever it shall appear from the pleadings and evidence that the party was entitled to have his motion or request for a directed verdict granted.”
That statute clearly authorizes a consideration of the evidence as well as the pleadings in determining whether a party’s motion or request for a directed verdict should
The other contentions of plaintiff in error relate to the issue presented by the answer and reply concerning the provision of the lease declaring the land to be rented “together with sufficient water from the Lewis extension of the R. Bahr canal” to irrigate the same. And the principal question presented upon that issue is whether under that provision the lessor was obligated to furnish sufficient water to irrigate the land, regardless of any lack of supply of water for said canal through the natural causes stated in the reply and shown by the evidence and without the lessor’s fault. It is contended by the plaintiff in error that the provision amounted to an absolute and unqualified agreement on the part of the lessor to furnish sufficient water throughout the irrigation season, in the absence of any other provision in the lease limiting the lessor’s liability in the event of a shortage of water in the source of supply. And it is contended on the other hand that since the contract provides only for the furnishing of water through a particular canal, the lessor was required to furnish water to the extent only that it was obtainable through said canal from the Greybull river, which was its only source of supply; and that the fact that it became impossible to obtain sufficient water during the latter part of the irrigation season because of the shortage of water in the source of supply excused further performance on the principle that the continued existence of sufficient water in the river to supply the ditch with the water appropriated for the land was an implied condition of the contract, and that no express provision was necessary limiting liability in the contingency which arose.
The evidence shqws without dispute that the failure to furnish sufficient water throughout the entire irrigation sea-son was caused solely by the shortage of water in the Grey-bull river, the only source of supply for the. ditch men
We think that the slight conflict in the testimony above related is unimportant, for if the plaintiff stated that it is in the lease that she is to furnish the water.that could have meant no more than what is stated in the lease or what is to be understood from the provision to which the reference was made; and certainly whether a possible or probable scarcity of water was one of the reasons for reducing the rent or whether such reduction was solely in consideration of the lessee’s agreement to do the ditch work cannot affect the construction of the contract. In view of the surrounding circumstances which must be considered to ascertain the intention of the parties, we think that the case clearly comes within the general principle which we find stated in Corpus Juris (13 C. J. 643) as follows:
“Where the contract relates to the use or possession or any dealing with specific things in which the performance necessarily depends on the existence of the particular thing, the condition is implied by law that the impossibility arising from the perishing or destruction of the thing, without default in the party, shall excuse the performance, because from the nature of the contract it is apparent that the parties contracted on the basis of the continued. existence of the subject of the contract.”
The principle is stated in a leading English case on the subject, Taylor v. Caldwell, 32 L. J. Q. B. 164, 6 Eng. Rul. Cas. 603, as follows:
“There seems no doubt that where there is a positive contract to do a thing, not in itself unlawful, the contractor*517 must perform it or pay damages for not doing it, although in consequence of unforeseen accidents the performance of his contract has become unexpectedly burthensome or even impossible. * * * But this rule is only applicable when the contract is positive and absolute, and not subject to any condition either express or implied; and there are authorities which, as we think, establish the principle that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled, unless when the time for the fulfillment of the contract arrived, some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continued existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor. There seems little doubt that this implication tends to further the great object of making the legal construction such as to fulfill the intention of those who entered into the contract. For in the course of affairs men, in making such contracts, in general would, if it were brought to their minds, say that there should be such a condition. ’ ’
And the principle is thus established clearly upon the theory that under the conditions mentioned the means of performance have ceased to exist without the fault of the promisor. For example, in Dolan v. Rodgers, 149 N. Y. 489, the court say:
“There are many cases holding that the continued existence of the means of performance, or of the subject matter to which the contract relates, is an implied condition, and the rule seems to rest upon the presumption that the parties necessarily intended an exception, and, as said in Dexter v. Norton, supra (47 N. Y. 62) it operates ‘to carry out*518 the intention of the parties under most circumstances, and is more just than the contrary rule. ’ ’ ’
And in Shear v. Wright, 60 Mich. 159, it is said: “While a contract may be so framed as to make the contracting party 'absolutely bound in all events, yet such is not the universal rule. In the present case the services agreed upon could not be rendered under the contract unless one or the other of the two animals could be had for the purpose. Their continued existence entered into the consideration of both parties as an indispensable element of performance. This being so, and there being nothing in the contract to provide a substituted performance as within the design, the case seems to fall within the rule that under such circumstances the existence of the means of performance is a condition without which, in the absence of fault, there can be no liability. This doctrine is very clearly stated in 2 Chit. Cont. (11th Ed.) 1070-1078 and the citations. The doctrine is reasonable and assumes that both parties become interested in the continued existence of the subject of the condition.
The rule has been held applicable in several cases involving contracts for the furnishing of water for irrigation. Acom v. Frye, 55 Colo. 56, 132 Pac. 55, is a case closely in point. There was a written lease of a section of farming land in that case whereby the lessor agreed to furnish 105 inches of water for irrigation. The lessee was plaintiff in the action and alleged that the defendant, the lessor, neglected, refused and failed to furnish that, or any, amount of water for the irrigation of the land, which prevented him from raising an average crop, to his damage. The court said as to the facts in substance, that the lessee, prior to leasing the premises, was informed that the water used for irrigating the farm was obtained from the High Line Ditch; that he made inquiries regarding the source of the water, and was informed by the prior tenant that the ditch water for irrigating the place came from that canal; and that he knew before he signed the. lease that the quantity agreed to be furnished was to be taken from that canal..
“It is a matter of common knowledge, about which there ought to be no controversy, that farming in this arid region can only be successfully prosecuted by means of irrigation. Our Constitution declares the water of every natural stream to be the property of the public, dedicated to the use of the people, and that priority of appropriation gives the better right to this use. Plaintiff knew that the ditches on the river, had different priorities, and that in policing the stream in times of scarcity the officers would close their river headgates in the order of their priorities. It is not claimed that Frye was a stranger, unacquainted with the conditions and surroundings under which the lease was made, or that any concealment, deception, or fraud was practiced upon him relative to the water available for irrigation. He was informed by others, and knew from his investigations, that the wTater to irrigate this farm came from one of the large irrigation canals operating in that community, and he was bound to take notice that it would take its supply in the order of its priority to the extent that there was water in the stream sufficient to supply its appropriation. It seems to be the theory of plaintiff that there is an express guaranty in the lease that Acorn would supply him a constant flow of 105 inches of water, regardless of whether it was in the canal or could be obtained from the river. There is no such guaranty in the lease, so it is useless to discuss what would be the effect of such a provision. Whenever water in natural streams is scarce, ditches can deliver in the order of their priority only, and while a ditch is ‘shut out’ it of course is unable to deliver any water to its consumers. This custom and' law controlling irrigation in this state was in the minds of both contracting parties when they made the lease, and will be read into it as constituting a part of the contract. ’ ’
Thus, in that ease, it was held to the contrary, of the contention of the plaintiff in error that a provision like, that in the case at bar, but even stronger because stating the quantity of water to be furnished, and evidently with
The similarity of the facts in that case to those in the case at bar, as well as the similarity in the law governing the appropriation and use of water for irrigation with reference to which the case was decided, renders it strongly applicable as an authority in the case at bar, justifying, we think, the extended quotation from the opinion.
The principle has been recognized also in Oregon and "Washington with reference to contracts to furnish or deliver water, though in the cases to be cited from those states stating the rule, the facts were held insufficient to justify its application. Thus, in a case involving the lease of a water power, it was said in Pengra v. Wheeler, 24 Ore. 532, 34 Pac. 354, 21 L. R. A. 726:
“It is a well recognized principle of law, that when it is apparent that the parties have contracted on the basis of the continued existence of a given thing, then, on performance becoming due, if, without the fault of the parties, the thing has ceased to exist, the ease has become one of mutual mistake and the duty to perform no longer remains. (Bish. Cont. § 588; Chit. Cont. § 1070.) The contract in the case at bar relates to the lease of a water power. The injury to the dams and race was not a destruction of the power, which continued to exist after the flood. * * * If the stream had, in consequence of drought, failed to furnish the necessary amount of water to operate defendant’s mills, this would have been a destruction of the subject-matter of the contract, and would have excused performance. ’ ’
In a later Oregon case, (Anderson v. Adams, 74 Pac. 215), which was an action for'damages for failing to furnish water for irrigation, the court quoted from Pengra v. Wheeler, supra, the above statement of the general principle, and then said, in disposing of an exception to a ruling excluding evidence to show the relative difference in elevation between old and new ditches for carrying water to leased lands:
*521 “Whether or not the drought of 1898 so affected the body of water from which the demised tract of land was to be irrigated as to cause the source to cease to exist, does not appear from inspection of the bill of exceptions, and the question so objected to appears only to go to the practicability of irrigating the leased land by means of a particular ditch. * * * The question relating to the difference of elevation of the respective ditches, and the statement of defendant’s counsel of what they expected to show if the witness was permitted to answer the question propounded to him, do not tend to show that the source of the water was wholly exhausted so as to render the irrigation of the land physically impossible; and for this reason the act of God is not involved, and no error was committed in sustaining the objection to the question asked.”
And in Evans v. Prosser Falls L. & P. Co., 62 Wash. 178, 113 Pac. 271, where it was held that, notwithstanding a diminution of the natural flow of the water in the stream, there would have been sufficient water, had it not been diverted for another purpose by the party contracting to furnish it and therefore that the latter was liable for the failure to furnish the quantity contracted for, the court said:
“The evidence, does, indeed, tend to show that the natural flow of water in the Yakima river was materially reduced during the dry season of the years mentioned, and, were this fact the sole cause of the shortage available for the canal, we think it could be held to be so far an act of God within the meaning of the contract as to excuse the want of performance of the contract. * * * The respondents contracted with reference to the natural flow of the stream, not with reference to such part of it as the appellant was saving from the flow, and they have the right to insist that the entire quantity so flowing and over which the appellant had control at the time their contracts were entered into, be turned into the canal, if so much be necessary to furnish them with the quantity for which they contracted. ’ ’
“But it may be answered that, viewing the contract in the light of the circumstances under which it was made, and bearing in mind further that the defendant’s agreement went but to the supplying water from a given named canal, it is reasonable to conclude, as the trial court must have done, that defendant was to supply the water from this particular canal, so long as it was permitted to do so, and that it was not within the contemplation of the parties that the entire construction of the canal should be changed, as would have been necessary to prevent either an anticipated interference with its use, or to enable it to continue to supply the water should such interference take place.”
The principle appears to have been applied in the Pennsylvania case of Ward v. Vance, 93 Pa. St. 499. That was an action substantially for damages alleged to have been caused by the failure of AYard to supply a hotel with water according to an agreement in a lease under which Yance
“Here is an express stipulation in reference to water supplied by the pipes that led from the house to the spring and in operation and that the lessee should have its use during the term, ‘to be furnished and supplied with the same and by and through the same pipes and faucets which are now used for said purpose, and by and through other pipes and faucets of the same dimensions.’ If the water failed because of drought and other natural causes, which neither party could prevent, it was no breach of any covenant, express or implied, for its supply. The lessor did not undertake to lay pipes to other fountains and furnish water in any other way than as supplied at the time of making the contract. He did not agree to furnish water in case drought dried that spring. We are of opinion it was error to instruct the jury that he was bound to supply water equal to the supply in 1871 whether the spring kept up or not. ’ ’
The Texas cases of Northern Irr. Co. v. Dodd, 162 S. W, 946, and Northern Irr. Co. v. Watkins, 183, S. W. 431, cited
Another case, also distinguishable from the ease at bar upon the facts, is Smith v. Hicks, 14 N. M. 560, 98 Pac. 138. In that case the water was to be furnished “from an artesian well located on the land:” The well had not been completed when the lease was entered into, but the lessor’s contractor was proceeding with the work, and when the final flow of water was struck, shortly after the crops had been planted, the contractor locked up the well so that the lessee could not get water from it, explaining that he had to do it to get a settlement with the lessor. The lessee protested and threatened to break the lock, whereupon he was told by the contractor that he would do so at his peril. The court said that if, after the well was brought in, the contractor had permitted the water to run for a time, and the lessee had been permitted to use it, thus obtaining possession thereof, the act of the contractor in locking the well would have been a trespass against which the lessee would have been charged with the duty of defending his possession, and further:
“The defendant had put Fisher ifi possession of the well under a contract to which Smith was not a party, and this contract gave Fisher a right to be upon the premises superior to that of Smith himself, as this right existed when*525 the lease was executed. Fisher refused to allow the well to flow for the use of Smith, and immediately locked the well. Smith protested to the extent of threatening to break the lock and take the water, but without effect. * * * The water was to be furnished for the use of the plaintiff in raising crops, and was not furnished, when, to obtain possession and use of it, the plaintiff would be required to incur personal danger or become involved in litigation. Smith was not the agent of Hicks in regard to the sinking or paying for this well. Fisher was in possession with a claim of right, and in our opinion the plaintiff was not required to do more than he did to obtain the water.”
The principle upon which the ease must be decided is recognized in Weil on Water Rights, 3rd Edition, wherein it is said (§ 538) :
“A contract being to supply water from a specific canal, failure of the supply in the canal from natural causes relieves the canal owner from liability for the failure to supply the water, and is not failure of consideration such as to allow recovery of advance payments; but it would be otherwise where the contract referred to no specific canal.” (See also R. & M. Irr. Co. v. Brumbaugh, 81 Nebr. 641, 116 N. W. 512; Duson v. Dodd, 46 Tex. Civ. App. 140.)
The principle is recognized and applied also in numerous cases involving contracts relating to various other subjects. For example: An executory contract for the sale of specific piles of lumber, or lumber to be cut from specified logs, or from timber upon specified land. (McMillan v. Fox, 90 Wis. 173; International Paper Co. v. Rockefeller, 161 App. Div. 180; Dixon v. Breon, 22 Pa. Super. Ct. 340; Switzer v. Pinconning Mfg. Co., 59 Mich. 488.) A contract to drive logs down a certain stream, where the water in the stream fell, making performance impossible. (Clarksville Land Co. v. Harriman, 68 N. H. 74, 44 Atl. 527.) A contract to furnish natural gas. (Bruce v. Ind. Gas Co., 46 Ind. App. 193; Jackson County L. H. & P. Co. v. Independence, 188 Mo. App. 157.) It is said in the Indiana case cited that “if performance depended on the continued existence of natur
For the reasons stated, we are of the opinion that the plaintiff was entitled to have a verdict directed in her favor upon her motion to that effect, and that the court' properly thereafter sustained her motion for a judgment notwithstanding the verdict.. And the judgment so rendered will be affirmed.
Judgment affirmed.