Plaintiff, cross-defendant, respondent and cross-appellant (hereinafter referred to as plaintiff) in 1948, under the terms of a written share-rent lease, leased two 80-acre parcels of land from P. C. Weaver and wife for the purpose of farming cotton and re-leased this acreage again on March 10, 1949. After the execution of the last lease the Weavers sold the 160 acres to defendants, cross-complainants, appellants and cross-respondents R. E. Hoffman, Sr., and wife, and R. E. Hoffman, Jr., and wife, and Enid T. Crews, and defendant, cross-complainant, respondent on cross-complaint, and cross-respondent on cross-complaint L. A. Crews, individually and as copartners doing business as Hoffman Cotton Company (hereinafter referred to as defendants).
By the terms of the written lease assignment dated April 1st, 1949, they did “promise and agree” to comply with all the terms, covenants and conditions imposed upon the Weavers as lessors.
A pumping plant was in operation on each 80-acre parcel. The written leаse provided, among other things, that:
“. . . lessee agrees to farm to cotton all of the tillable land located on the herein described property and to deliver to the lessors, as rent, one-fifth (1/5) of all cotton and cotton seed produced thereon.”
The main contention arising in this case involves the paragraph reciting that:
“It is understood and agreed by and between the parties hereto that the well and pumping plant located upon said premises now produce sufficient water for the irrigation there
It appears that the pumping plant furnishing water for irrigation of the east 80 acres failed through no fault of the plaintiff on June 20, 1949, and at that time plaintiff had growing upon that acreage a thriving crop of cotton and, according to the evidence, under normal conditions, with water to irrigate, it would have produced not less than an average of 1% bales of cotton per acre. It appears that the defendants were notified and had knowledge of the failure of said well and pumping plant; that they came to the property, made examination, and were fully advised of the need existing and instructed plaintiff not to worry, that they would take care of providing for the repair of it. The testimony shows that the defendants were experienced cotton people, knew and were advised that it required ample water for the production of cotton crops; that plaintiff’s crops were then in condition to require irrigation and if water was not applied the result would be a loss of the crops to plaintiff.
It appears that as a result of the failure of the well and pumping plant plaintiff’s crops growing on the east 80 acres failed in part and his loss therefrom was estimated to be 75% bales of cotton, resulting in a net los to plaintiff of $8,-682.50, being 75% bales at $115 per bale (or $160 per bale less $45 cost).
Plaintiff’s crops, according to plaintiff’s testimony, failed to receive any irrigation on the east 80 acre tract from June 20, 1949, to August 8, 1949, being a period of one month and 18 days. The evidence indicated that the loss of the crops sustаined by plaintiff was occasioned by reason of the
Plaintiff takes the legal position that under the lease, if the well or pumping plant failed or there should be any substantial diminution of the water supply, defendants were obligated to do such other things as might be necessary to increase the supply of water, and their failure to do so showed a lack of diligence on their part resulting in the claimed damages. The court 'found generally in accordance with the facts stated.
It is defendants’ contention that although the evidence does show that they encountered difficulty with the pump and well and plaintiff was not able to obtain the supply of water from it for a period of time up to July 27th, they did, after receiving notice of the condition, exercise reasonable diligence in an endeavor to place it in operation, but thrоugh no fault of their own they were unable to do so and accordingly they complied with the terms of the lease which did not require them as guarantors to furnish water at all times but only to use their best efforts to see that there was sufficient water to irrigate said property, and that the evidence conclusively shows this and accordingly the finding of the trial court is not supported by the evidence.
Defendant Hoffman, Sr., testified that the cause of the breakdown was due to obstruction in the well, and that he immediately employed thе Pixley Hardware Company to pull the bowls out of the well; that it tried to remove the obstruction but informed him it could not be done; that thereafter he secured the B & B Drilling Company to attempt the repairs, and after working on it for two days, June 28th and 29th, 1949, they were unable to rectify it; that one Elvis asked him if he could attempt to remove it but he found that he could not; that after two days of trial he authorized him to drill a new well; and that during the middle of July the drilling of a new well was commenced and completed by July 27th.
Plaintiff testified that it was not commenced until July 27th; that the casing was delivered on that date; and it was not completed until August 8th. By stipulation of counsel it was agreed that there was a record of a steel company indicating that some casing was delivered at the site on July ISth.and the balance on July 19th. The records of the electric company showed that there was a power hookup installed for
The contention is that the evidence conclusively shows that defendants exеrcised reasonable diligence in repairing the old well; that the agreement did not require the drilling of a new well, but if it did, they were not lacking in any diligence in procuring it; that the finding of the court that defendants were negligent and had breached the lease agreement is not supported by the evidence.
Plaintiff contends that the full import of the agreement was that defendants would use “their best efforts to see that there was sufficient water to irrigate said property”; that since they mutually agreed there was sufficient water to irrigate the land when the lease was executed, and wherein plaintiff was required by its terms to farm all tillable land to cotton, defendants must have known that plaintiff’s ability to comply with the agreement required an ample supply of water, and since that was the only source of water, accordingly they were obligated to do everything necessary or reasonably possible to furnish a supply of water equal to that then being produced; that the evidence conclusively shows that they failed to supply any water to the 80 acres involved between June 20th and August 8th, 1949, and accordingly ordinary diligence was not exercised and a partial crop failure resulted.
It is conceded that the main crop failure was due to lack of supply of water. An examination of the reporter’s transcript shows that the plaintiff Gilmore testified he planted his cotton crop in the early part of April, 1949, and in June he fertilized it; that defendants changed from gas pumps to electric pumps; that his crop needed irrigation on June 20th, and after running the electric pump on the east 80 acres for a period of time, a shaft that turns the bowls broke;' that he immediately, on June 21st, told the defendant Crews of this condition, and Crews sent plaintiff to defendant Hoffman, Sr., and he reported that fact to Hoffman; that Hoffman said he would have one Simeral fix it; that Simeral came out and tried to repair it and could not; that he told plaintiff the bowls had broken off and fallen into the well; that later, on June 28th, the B & B Drilling Company came out and the bowls came out of the well with the pump and apparently did not break off as indicated by Simeral; that the workmen said they would return the next morning; that plaintiff’s cotton crop at that time was very much in need of water; that on
It therefore appears that there is a conflict in the evidence between that related by the plaintiff and that produced by the defеndants in relation to the time when the casing was delivered and when the well was completed and water was produced. It is defendants’ contention that the testimony of the plaintiff, although positive in form, was completely destroyed by the production of the receipts, the checks, and the testimony of defendants’ witnesses, and that therefore plaintiff’s testimony was of no weight and should be disregarded in this respect, citing such cases as
Elliott
v.
Market Street Ry. Co.,
The claim that the defendants were not under obligation to drill a new well under any conditions of the agreement and that their willingness to do so was purely voluntary is not sustainable. By the agreement plaintiff agreed to farm the land. It was agreed that plaintiff then had a sufficient supply of water to irrigate it and that if the water supply from said wells failed defendants would, within a reasonable time after notice, deepen the well or lower the pump therein or “do such other things as may be necessary to increase the supply of water that can be produced by the said well and pumping plant to an amount as nearly equal to that now being produced as is reasonably possible.” It is clear that the intent of thе agreement was to keep plaintiff supplied with water for the purpose indicated. Defendants could not satisfy the terms of the agreement by merely making two or three unsuccessful attempts to correct the failure of the wells to produce the amount of water agreed upon and then abandon further attempts to produce water or to further remedy the situation. While defendants did not guarantee to make water available to plaintiff “at all times” the inference is that they intended to guarаntee water to him at least some of the time, allowing a reasonable time in case of a breakdown that they may be afforded an opportunity to “do such other things as may be necessary” to increase the supply of water to that which ordinarily had been produced by that well. We conclude that there is no merit to this contention.
The real question is whether defendants used their best efforts to see that there was sufficient water to irrigate the property in accordance with their agreemеnt. As it appears now, their best efforts would have been to drill a new well when it was first discovered, about June 21st, that such action was necessary. The delay and unsuccessful efforts in doing other exploratory work and in trying to obtain satis
Some contention is made by defendants that no breach of the agreement was chargeable to defendants because, by its terms plaintiff was required to notify defendants “in writing” pertaining to the condition of the pump, and demand that the situation be remedied; and that oral notice was insufficient, citing such cases as
Monson
v.
Fischer,
Defendants concede that thе evidence shows that they were orally notified of the condition and that they had actual knowledge and notice of it and that a request was made to remedy the situation; that they thereafter inspected the condition and did make some effort to correct it. It is plaintiff’s testimony that when defendants refused to act further and drill another well for the production of water, he did, on July 6th, send written notice of the condition, and stated that he had previously reported the trouble to them and requested them to remеdy the condition. The court so found. Under the facts related defendants would be estopped to claim any rights by failure of plaintiff to serve defendants with written notice of the conditions in the first instance. Their actual knowledge was equivalent to notice, particularly where, as here, they acted upon the oral-notice and thoroughly understood the situation, were not relying upon any such written notice, and apparently waived it. A provision in a contract pertaining to written notice may be waived, either expressly or by conduct, by the party for whose benefit it is inserted.
(Daly
v.
Ruddell,
The next complaint involves the amount of damages awarded to the plaintiff and to the cross-complainant L. A. Crews. By plaintiff’s complaint, he seeks judgment against defendants for their breach of the agreement, and alleges that the difference between the number of bales which would ordinarily have been produced on said land and the
Defendants, doing business as Hoffman Cotton Company, answered and denied generally the allegations of plaintiff’s complaint, and by way of a cross-complaint against plaintiff, sought the recovery of one-fifth of all cotton and cottonseed produced by plaintiff on both 80-acre tracts as rental. They alleged that plaintiff sold the 1949 crop from both 80-acre parcels for $8,208.16, being the amount realized from the production of 61 bales of cotton grown on said land by plaintiff that year; and further alleged that one-fifth of the crop amounted to $1,641.63, and that said sum was an offset against any claimed damage allowed plaintiff; that if a judgment was given plaintiff for $22,320, or any portion of .it, defendant should be allowed an offset of 5 per cent on that amount as rental, plus the $1,641.63, as alleged.
Defendant and cross-complainant L. A. Crews, by separate cross-complaint, alleged that the defendant Hoffman Cotton Company, in a partnership settlement, assigned to him all accounts receivable pertaining to their joint venture and partnership and accordingly he asked the court to determine that he was entitled to the $1,641.63 claimed by the defendant company for crop rental due from plaintiff to the company. He attached to his cross-complaint a copy of the alleged dissolution agreement and assignment.
At the conclusion of the trial the court found generally in respect to the damage that plaintiff planted 150 acres of cotton on the two parсels, and that on June 20, 1949, the crop was growing and was in a healthy condition; that on that date, on the easterly portion, at least 70 acres had been planted to cotton; that the pump broke down and the well failed to produce water; that the crops growing thereon sustained a loss in production consisting of 75% bales; that 35 per cent of said loss was attributable to defendants’ breach of the terms of the lease and their negligence- in failing to repair the well and pump for the period from June 20th to August 8th, 1949; that the reasonable net market value of the portion of the cotton crop lost by plaintiff was $3,038.87; that defendants would be entitled to one-fifth rental therefrom, totaling $607.77, resulting in a net loss to plaintiff of $2,431.10; that plaintiff received $8,208.16 for cotton marketed from the entire leased premises, and defendants were entitled
Plaintiff Gilmore appealed, claiming that the court should have awarded him the entire loss of $8,682.50 claimed to have been sustained by him, less the one-fifth rental. Defendant Hoffman Cotton Company appealed and claims that not only was there no breach of the agreement, but that the judgment is not supported by the evidence; that it was error to give judgment to Crews on his cross-complaint beсause the crop rental should be used as an offset against the judgment in favor of plaintiff and against all defendants; that the court erred in admitting and excluding certain testimony and that the damage found is not based upon any substantial evidence.
The evidence pertaining to crop damage may be thus summarized. Plaintiff testified he compared the 1949 returns with the returns from the crop he obtained in 1948, from the same acreage, without fertilization, and from this comparison he estimated the crop return he should have received in 1949, with fertilization, at a bale and a quarter per acre. He then stated that the only crop return on the east 80 in 1949, due to burn from lack of water after fertilization, was the picking of 12 bales of bolls, and that they were ginned, but no standard grade cotton matured on that parcel; and that the price of the bolls was much lower than regularly developed cotton.
Other witnesses testified that they were familiar with the property and had observed the condition of the cotton crop on June 20th, 1949; that both 80-аere parcels had a fair stand of cotton, and if cared for in the normal manner should have produced at least a bale of cotton per acre. Other witnesses testified that it might produce 1% bales per acre. One witness' testified he handled and held the mortgage on the crop actually obtained and that the two 80-aere parcels produced 61 bales of cotton, weighing 29,351 pounds, but that the number of bales of bolls was not separately indicated in this return but the gross return of the 61 bales of cоtton was $8,206.16; that the production from the two 80-aere parcels in 1948 was 111 bales. He testified that about July 25, 1949, after the water supply failed on the east 80, there
Plaintiff’s claim that there was a complete destruction of his crop on the east 80-acre parcel due entirely to defendants’ negligence is not borne out by the record. The court found that as to the east 80-acre tract, there was a total lоss of 75% bales of cotton, as compared to the previous year, and that only 35 per cent of that loss was attributable to defendants’ negligence. It also found that there was a crop loss on the adjoining 80-acre tract where there was sufficient water supplied by defendants, but found that such loss was not attributable to defendants’ negligence. The agreement does not provide that defendants should guarantee water “at all times,” but provides for temporary breakdowns and that defendants might not be liablе for crop damage during such reasonable periods, even though some damage might result. To sustain plaintiff’s contention it would be necessary to construe the agreement to mean that it provided an absolute guarantee of water “at all times.” It-does not so provide. We cannot say, as a matter of law, that plaintiff was entitled to the full amount of claimed damage, particularly where the evidence justifies the conclusion that all of the damage claimed was not due to defendants’ negligеnce. The percentage of crop damage for lack of water, for the dates indicated by the expert witness, add support to this eon
The judgment allowing Crews the sum of $1,641.63 on his cross-complaint, as an offset on the judgment rendered against him, rather than an offset against the judgment obtained against defendant Hoffman Cotton Company, including Emma T. Crews, is supported by the evidence under the theory that the one-fifth crop rental due from plaintiff to the partnership was one of the accounts receivable of the partnership or joint venture at the time of its dissolution on April 20, 1951. It provided for its dissolution and, among other things, that the Hoffmans do hereby “transfer and assign to . . . Crews ... all of the accounts receivable of said joint venture ...” However, in this connection, a separate assignment was made by the Hoffmans on May 18, 1951, assigning “those accounts of the Hoffman Cotton Company . . . referred to in their agreement.” These accounts receivable are set forth in an attached list as being accounts shown on the books of the company. This list does not mention the account of N. M. Gilmore. However, we conclude that assignment in the agreement was sufficient to cover the account here in question.
No prejudicial error appears and the evidence supports the findings and judgment rendered.
Judgment affirmed.
Barnard, P. J., and Mussell, J., concurred.
Defendants’ and appellants’ petition for a hearing by the Supreme Court was denied April 14, 1954.