32 Colo. 506 | Colo. | 1904
Lead Opinion
delivered the opinion of the court.
The purpose of this action, commenced by appellees as plaintiffs, against appellant, as defendant, was to recover from the latter its alleged proportionate share of the expenses incurred by plaintiffs in draining mines operated by the parties in severalty. From a judgment for plaintiffs for twenty-seven thousand dollars, the defendant appeals.
The cause of action was stated in two counts. The first counted upon a contract between the parties, and the second upon the statute relating to the drainage of contiguous mining properties. According to the averments of the first count, it appears that for the period of twenty-seven months subsequent to July 23, 1891, the parties were severally engaged in the operation of contiguous mines having a common drainage or water level; that when the water was taken from neither it would rise to a common level in each; that pumping the water from plaintiffs ’ mines drained the property of defendant; that plaintiffs, during the period mentioned, pumped the water from their mines, thereby draining the mine of defendant, and that the expense thus incurred by them was two thousand dollars per month. The complaint then charges, after alleging a demand upon the defendant about June 1, 1891, to pay its just and fair proportion of such expense. “And the said defendant then and there, in consideration of the premises and of the benefits accruing to it by reason of said drainage, and in consideration that it would be continued to drain said mine as they were doing, undertook and
We shall first consider the questions raised on the demurrer to the first count. It is asserted that this count fails to state a cause of action for four reasons: (1) That the contract declared upon is so uncertain that it cannot be enforced; (2) that it does not appear from its terms that it was mutual; (3) no facts are stated from which it can be determined what would be a just and fair proportion for the defendant to pay; and (4) it is not charged that the expense of pumping was incurred at the request of the defendant.
1. A contract is not void for uncertainty, even though it does not enter into all the details with respect to its subject-matter, if, according to its terms, it is sufficiently definite so that it can be ascertained with a reasonable degree of certainty what the parties intended to agree to. Thus tested the terms of the agreement with respect to each can be readily ascertained. In brief, the contract was to the effect that in consideration of the plaintiffs’ pumping the water from all the properties the defendant should pay them its proportion of the expense of such pumping. True, the parties did not agree in specific terms how many dollars each should contribute to the expense of drainage, nor what aliquot part of such expense each should bear; but they did agree how the sum which the defendant should nay should be determined; that is, that it “would pay to the plaintiffs its just and proper proportion of said cost of drainage.” So that it only remains to determine from the
2. In order to enforce an unexecuted contract, mutuality is necessary, hut this requisite does not apply to a contract which has been executed. As to an executory contract, want of mutuality or reciprocal obligations of the contracting parties would he a good defense in an action to enforce specific performance, or to recover damages for its breach, hut when executed and the action is for the purpose of enforcing the obligation arising from its execution, the want of its mutuality originally is immaterial. —Frue v. Houghton, 6 Colo. 318; Wood v. Casserleigh, 30 Colo. 287, 71 Pac. 360; Marie v. Garrison, 83 N. Y. 14; Crawford v. Avery, 35 Miss. 205.
According to the complaint, - the plaintiffs have performed for the defendant that which they agreed to do, and the latter must, therefore, pay the consideration agreed upon, irrespective of the question of whether or not either was originally bound by the terms of the contract further than as conditions precedent which would entitle the one performing the acts agreed upon to a performance by the other of the obligation resulting from such performance.
3. It is argued by counsel for appellant that the averment in the complaint to the effect that the just and fair proportion of the amount which the defendant should pay is the sum of one thousand dollars per month, is but a conclusion of the pleader, and that no facts are stated upon which such conclusion can he predicated. It appears from the complaint that the mines of the respective parties were drained -by plaintiffs; that during this period both the plaintiffs and defendant were engaged in operat
4. There is no specific averment in the complaint that the pumping operations of plaintiffs were carried on at the request of the defendant, but the absence of this statement does not render the complaint obnoxious to the demurrer. The complaint avers that about the time the defendant began to operate its mine it promised and agreed with the plaintiffs that it would pay them its just and fair proportion of the expense of drainage, and that the plaintiffs, in consideration of such promise, did thereafter drain the mine of the defendant for a specific period. In such circumstances, the law implies a request, or, in other words, a promise to pay for services to he performed implies a request for their performance. — 1 Parsons’ Contracts, *474.
The issues made by the answer to the complaint were found in favor of the plaintiffs. From these findings it appears that the mines of the parties had a common drainage; that plaintiffs pumped the water from the property of the defendant from July 23,
In order to determine these questions, a brief reference to the evidence bearing upon them is necessary. From the testimony of one of the plaintiffs, it appears that they commenced to operate their mines in the early part of 1891; that pumping the water from these mines drained the one subsequently operated by defendant, and that it commenced to operate this property below the water level in July, 1891; that about this time the witness informed the manager of the defendant company that plaintiffs, by operating their properties, were draining the water from the mine of defendant, and wanted the company to pay a. part of the expense of drainage, and in
In so far as any argument is based upon tbe assumption that tbe testimony is insufficient to establish tbe contract pleaded because contradicted, either directly or by circumstances called to our attention, it is sufficient to say tbat these were matters for tbe trial court to consider, and its findings on tbe issue of tbe making of tbe contract being in favor of plaintiffs on conflicting testimony, will not be disturbed on appeal when there is sufficient evidence to support it. Tbe testimony on tbe part of, plaintiffs was certainly sufficient from which to infer tbat tbe defendant did promise to pay them something on account of tbe pumping operations, and therefore supports tbe finding of tbe court on tbe subject of tbe contract, unless for one or more of tbe other reasons urged by counsel, tbe promise made by tbe defendant, as claimed by plaintiffs, cannot be upheld.
Tbe contract declared upon, we have already indicated, was not subject to an attack on tbe ground of uncertainty, and it remains to determine whether the witness for plaintiffs has stated a contract sufficiently definite and certain to be enforced. Tbe language of tbe promise, was to pay what was just-and
When the plaintiff who testified and the manager of the company, about September, 1893, were discussing the subject of drainage, it is plain from the statements of the former that they had in mind the question of compensation for the drainage of the mine of defendant past as well as future. Plaintiffs had then been draining the several properties for over two years, and during that period had at various times endeavored to effect some definite arrangement with the defendant to pay its part of the expense and cost of drainage by which the defendant was benefited, so that the statement attributed to the manager, to the effect that his company was considering what it would pay, that it would do what was fair, and he could say it would pay what was right, clearly included drainage prior, as well as subsequent, to that time. Plaintiffs continued their pumping operations after that date. Of this the defendant has had the benefit. The consideration which the defendant has thus accepted went to the entire undertaking upon its part, and rendered it liable to pay its proportion of the expense of pumping performed before, as well as after, its promise. The rendition of services in consideration of a promise to pay for them, as well as those performed prior to the promise, is a sufficient Consideration to uphold a promise to pay for the
The fact that the defendant had no control over the pumping operations of plaintiffs would not prevent it from entering into a binding arrangement the purpose of which was to have such pumping operations carried on for its benefit. That this arrangement does not appear to have contemplated that the drainage should be performed by plaintiffs for any particular length of time in the future, or that by the agreement claimed on the part of plaintiffs there was no mutuality, does not, for the reasons we have already given, relieve the defendant from the obligations imposed upon it by virtue of such pumping. The plaintiffs continued to drain the mine of the defendant after the promise made by its manager, and it remains for the defendant to make good its promise by paying what it agreed in consideration of the services performed by the plaintiffs.
The agents of the defendant with whom plaintiffs discussed the question of drainage were in the active management and control of its property. Its mining operations were being carried on under their direction. The agent with whom the witness Reed talked in September, 1893, testified at the trial that he had no authority to enter into a contract relative to drainage. This, however, is immaterial. He does not pretend to have made any such statement to the witness at the time of the conversation referred to. In carrying on mining operations through a shaft I the water in a mine must be kept out; otherwise, the 'property cannot be operated below the water level. The defendant was working its property below that level. It appears, then, that provision for the drainage of its property was one of the matters which the manager of the defendant must necessarily have had authority to arrange for, and it is therefore estopped
Errors are assigned on the admission of alleged incompetent testimony which, it is claimed, was not material to the issue of the cost of drainage. The testimony as to what was the actual expense of carrying on the pumping operations was not disputed. From this it appears that the actual expense of such operations was not less than two thousand dollars per month. The testimony admitted over the objection of defendant which, it is. claimed, was incompetent, could not, in the slightest degree, have affected the finding of the court as to what the expenses were per month which the plaintiffs incurred on account of drainage; so that although the testimony objected to may have been incompetent or irrelevant, in as much as it affirmatively appears that its reception could not have influenced the court in its findings on the issue of the pumping expenses, or any other issue in the case, it was harmless error.
The judgment of the district court is affirmed.
• Affirmed.
Rehearing
On Petition for Rehearing.
In support of a petition for rehearing, it is urged that the agent of the defendant who promised to pay for the pumping had authority only with respect to the current affairs of the company, and no authority as to matters which were past. For the past pumping,
It is again urged that because the plaintiffs enteréd into no arrangement to continue the pumping for a definite length of time in the future, that there was no consideration for the promise to pay for the past drainage. 'In Loomis v. Newhall, 15 Pick. 159, it was held that an entire promise founded partly upon a past and executed consideration, and partly upon an executory consideration, is supported by the latter. Where there is a request to continue services of a character theretofore rendered, the continuance of such services is a sufficient consideration to support a promise to pay for those rendered prior to such request. — 6 Enc. of Law, (2d ed.) 694; Wolford v. Powers, 85 Ind. 294.
Applying this rule, no fact is called to our attention which would justify us in holding that the plaintiffs did not continue their pumping operations for a reasonable length of time after the promise to pay for the past, as well as the future, pumping was made, inasmuch as it appears from the testimony that such pumping operations were continued for at least thirty days after this promise. In fact, we think from a further examination of the record, that the promise was probably made several months prior to the date suit was commenced. Aside from these reasons, it appears to us that there are other grounds sufficient to support the judgment, which, however, have not been discussed by counsel.
Negotiations were opened between the parties shortly after the defendant commenced the operation of its mine, and while no definite promise appears to have been made until some time after, it might well be said that this promise was but a consummation of the arrangement which the parties originally contemplated should be made.
The petition for rehearing is denied.