52 P.2d 678 | Wyo. | 1935
This is an action brought by the plaintiff Mattie A. McHale against the Goshen Ditch Company for damages for failure to furnish the plaintiff irrigation water during 1928 to 1932 inclusive. The Ditch Company denied the right of plaintiff to damages and also filed a counterclaim for assessments due from plaintiff, and from her land, for maintenance charges. The court found against plaintiff on her demand, and found in favor of defendant on its counterclaim in the sum of $349.50, declared this amount to be a lien against plaintiff's land, and ordered that it be sold to satisfy the amount due. From this judgment the plaintiff has appealed. The facts, in brief, are as follows:
The defendant is a ditch company. Judging from the record, its capital stock is all owned by farmers owning land under the line of its ditch and receiving water therefrom. On November 26, 1929, it was sold to Sarah A. Lacy, predecessor in interest of the plaintiff, a perpetual water right and ditch right to irrigate approximately 45 acres of the south half of the southeast quarter of Sec. 33, T. 23 N., R. 62 W. of the Sixth P.M. The purchaser under the contract, and her heirs and assigns, agreed to pay the proportionate part of maintaining the irrigation works of defendant; that the amount thereof should be a prior lien on the land, which might be foreclosed to enforce the amount due, and that the ditch company "may also shut off and cease the supply of water from all of said lands until the amounts due and owing for the said pro-rate shares shall have been fully paid." Later, in 1924 and 1925, defendant issued to plaintiff's predecessor in interest certificates for shares of the capital stock of the ditch company, one for 39 shares, and one for 45 shares, the certificates containing the following clause: "The shares represented by this certificate are assessable by *104 a vote of the shareholders or by a vote of the board of directors of the company when authorized by the stockholders for their proportionate part of the costs of operating the company's business and maintaining and operating the company's ditches and reservoirs and storage works and their proportionate part of the construction of any betterments undertaken by the company, provided that no assessments shall be due until at least ten days after it is levied and that no stock shall be entitled to its storage and delivery privileges against which there is levied and outstanding and unpaid any assessment."
The ditch of defendant, to reach plaintiff's land, comes from the south. While the written records do not show where the water was to be delivered to the latter's land, it seems clear that defendant's ditch was intended to be built substantially up to plaintiff's land, the ditch running in a semi-circle, bent westward for about a mile before reaching the land. This part of the ditch was not, until 1932, in condition to carry much water. Some of the witnesses testified that it ran up-hill part of the way. In any event the witnesses are agreed that it was not in good condition to carry water of any substantial amount. During 1924 and 1925 the land was irrigated by carrying water through a neighbor's ditch, and thence through a private ditch, constructed by plaintiff's predecessor in interest. But this method was cut off during 1926 by a railroad track, extended to Yoder during that year. The land was not irrigated during that year, nor in any subsequent year up to the commencement of this suit. Assessments for maintaining defendant's irrigation works were made against plaintiff's land each year. Those made up to and including the year 1925 were paid. An assessment of $33.60 was made in April, 1926; an assessment of $63.00 in February, 1927; an extra assessment, for special work, in June, 1927, in *105 the amount of $196.56. Assessments were also made during 1928 and 1932 both inclusive. The time when they were made does not appear, but if we may credit counsel's statement on the oral argument, they were made early in each year before the irrigation season started. They were due ten days after they were made. None of these assessments made since 1926 have been paid. Plaintiff bought the land and the stock issued to Mrs. Lacey in December, 1927, and attempted to get the ditch company to deliver water for the land during 1928. But he did not succeed. The defendant asked that the delinquent assessments for 1926 and 1927 be paid. Plaintiff refused to pay them. Efforts to settle the controversy were made by the parties from time to time, but were not effectual. Some other facts will be stated hereafter. The parties will be referred to as in the court below.
1. We shall first consider the counterclaim of the ditch company. As stated, no water was delivered to Mrs. Lacey, then owner of the land, during 1926 and 1927, but assessments were made against her and her land. It is the non-payment of these which lies at the basis of the trouble between the parties. Plaintiff claims that inasmuch as the ditch company was unable to deliver any water, due to the fact that the ditch was never constructed so as to be able to do so, no assessments for these years can be collected. The ditch company counters by saying that no demand for the delivery of water during these years was ever made. It is doubtful that a mere demand would have been anything more than an idle ceremony in the face of the conceded fact that the ditch was not in proper condition. Allen v. Land Co.,
"The undertakings of parties to a contract are mutual and dependent, and before either can recover for breach, he must do more than show default of the other — he must show either performance or an offer to perform — and in order to show the latter he must show his readiness and ability to perform at the appointed time and place. These are conditions precedent to the right of either party to maintain an action for the default of the other, and until they are complied with the default is mutual and non-actionable. Davis v. Gilliam,
The rule as otherwise stated is, that in order that one of the parties to a contract may sue the other for the latter's default, he must be ready, able and willing to perform his part of the contract. Browning v. Ry. Co., supra; St. Louis Union Trust Co. v. Van Raalte, 214 Mo. App. 172,
In view of the fact that the non-payment of the 1926 and 1927 assessments lies at the basis of the trouble herein, we should, perhaps, call attention to some of the cases which deal with the subject of shutting off water for past due assessments. It is stated in 67 C.J. 1267 that the remedy of refusing to deliver water cannot be used as a means of collecting a disputed installment of water rent, and that a water company "cannot, as a condition precedent to supplying" a water user, require him "to pay an old or disputed bill for water furnished him at some previous time," since it ought not to be permitted to become both judge and jury. The decisions apparently are not altogether uniform on this point. See 67 C.J. 1269, Sec. 823. And it may be — a point which need not be decided — that a distinction should be drawn between use of water in a city for domestic purposes and water used for irrigation. It is held in California and Idaho that a contract, or regulation, that water for irrigation may be refused to a consumer until he pays all assessments for past years is null and void, where the ditch company is, by statute, given another remedy. Crow v. Canal Irrigation Company,
2. We next turn to plaintiff's claim for damages. Her duty was to pay the assessments properly payable by her. While she made a commendable offer in connection with the settlement of the controversy relating to the 1926 and 1927 assessments, she did nothing in connection with the assessments for the current years. She neither performed in that respect, nor did she offer to perform. The testimony merely shows that she would have been glad to pay them, if she had been furnished with water. She evidently believed that the *110
furnishing of water was a condition precedent, which was required to be fulfilled before she could be called on to pay. But that was not true. If one duty had to be fulfilled before the other, which we need not decide, it was the duty to pay, if we accept as true that the assessments for the current year were payable before the irrigation season. See 269, Restatement of the Law of Contracts. We have already stated that, in order for a party to a contract to be able to sue thereon, he must do more than show default of the other. Where both parties to a contract are in default, there can be no recovery by either against the other. Chicago Washed Coal Co. v. Whitsett,
"But before he (the water user) could maintain a suit he must show that he not only had offered to, but was then ready and willing to give the canal company reasonable security for the payment of the water rent. He must pay reasonable compensation for the water, *112 or give reasonable security therefor, before the canal company can be compelled to deliver him water."
And again, on rehearing (67 P. 430), the court said:
"The right of a party,, therefore, to water for each year, depends upon the user's complying with the statute as to payment of compensation, or tender of security therefor, and until such compensation, or security therefor, is actually tendered to the owner of such irrigation canal or works, no action has accrued of which the courts will take cognizance."
The courts in states where irrigation is prevalent have announced the same or a similar rule, at least in cases where assessments had been actually levied and were due before the irrigation season, which we take to be the fact in this case. 67 C.J. 1392. The decisions, it is true, are based upon statutory provisions. But they seem to state a rule of the common law. Ditch companies are ordinarily common carriers, and it is well known that such carriers are not bound to transport goods without the prepayment of carriage charges, unless they waive it. Paige, supra, Sec. 2956. Even though in this case, the defendant company cannot be said to be a common carrier in the full sense of that term, its relation thereto is so close that the same rule would seem to be applicable. Some of the cases relating to concurrent covenants appear to make actual, formal tender unnecessary, holding it sufficient to show readiness and willingness to perform and notification thereof to the other party. Paige, supra, 2968. It would seem to be doubtful that the contract in the case at bar should be construed to be "concurrent" in that sense, at least if we may take it to be true that the assessments were payable before the irrigation season started. See Sec. 269 of the Restatement of the Law of Contracts. It is not, however, necessary to decide this point, inasmuch as it has not been shown *113 that plaintiff complied even with the modified rule here stated. See also 62 C.J. 672, 673. No person, of course, is compelled to do a vain and idle thing. A tender may be waived or excused (13 C.J. 662-665), but that, it seems, should be clear. Paige, supra, 2872; Williston, on Contracts, page 1465, note 78. In Hoyt v. Sprague, 61 Barbour 497, the court said:
"The true rule I take to be this: that the mere assertion unaccompanied by any other act, of a lien greater in amount than the lienor is entitled to, will not obviate the necessity of a tender; for it may be that the right amount would be accepted; but when, as here, there is an absolute refusal to deliver up property unless a claim to which the party is not entitled is discharged, so that it appears that a lien claimant says, in effect, do what you will; tender any amount you please; unless it be the whole of my unlawful demand, I will not accept it, nor surrender your property, then the law dispenses with the idle ceremony of making a tender which the claimant, in advance, declares he will not accept, and an action may be brought immediately."
See Rubber Co. v. Lawer Supply Co.,
We think, accordingly, that neither the plaintiff nor the defendant has shown a cause of action for recovery. That part of the judgment herein finding against plaintiff on her cause of action is, accordingly, affirmed, and the judgment in favor of defendant on its counterclaim is reversed, and the cause remanded to the trial court with direction to dismiss such counterclaim. The *115 costs in this court will be equally divided between the parties, except that none will be taxed for the briefs.
Affirmed in part, reversed in part, and remanded withdirections.
KIMBALL, Ch. J., and RINER, J., concur.