106 P. 504 | Utah | 1910
The Mt. Nebo Land & Irrigation Company, a corporation, was engaged in the business of developing' and conducting water for irrigation and other beneficial purposes, and was the owner of certain reservoirs, franchises, privileges, and water rights in and to the waters of little Salt Creek Canyon and Current Creek, and their tributaries, and was also the owner of certain lands in the vicinity of such creeks. In September, 1897, it entered into a written agreement with the plaintiff, by the terms of which it agreed to convey to plaintiff twenty-five acres of land and a certain quantity of water, to be delivered by it from such creeks, upon the payment of $1180, $241.50 of which was paid upon the execution of the contract, and the balance to- be paid in annual payments of $218.87 each, together with interest on the deferred payments. It was further stipulated in the contract that the company was required to deliver the water during the irrigation season of each and every year, extending from April to October, and to keep and maintain the canal system and the reservoirs in good order and condition. It was also stipulated' that the company should not be responsible for deficiency of water “caused by the act of God, forcible entry, or temporary damage by floods or other accidents, but the irrigation company shall use and employ all due diligence at all times in restoring and protecting the flow of water in its canals and laterals.” The contract contains other provisions not necessary here to be noticed'. In September, 1899, the plaintiff and the irrigation company entered into another written contract, by the terms of which the company agreed to convey to her seven and one-half acres of land, and certain water rights, for the sum of $750, $200 of which was paid when the contract was executed, the bal-
The execution and terms of these contracts were alleged in the complaint. The plaintiff further alleged that the sum of $247.50 was paid by her on the first contract, and that in the year 1900 she, at the instance and request of the defendant irrigation company, rendered and performed services for said company, the value of which was agreed between them to be $652.25, and that in 1905 she again rendered services for said defendant in repairing and cleaning the canals and ditches, and that such work was reasonably worth $333.75. She further alleged that she had perfromed all the conditions of the contract on her part to be performed, but that the said defendant, between the years 1901 and 1906, both inclusive, “failed, neglected and refused to furnish and deliver the water therein agreed to be furnished by it” to plaintiff’s damage in the sum of $809.75, and that it also failed and refused to convey the lands to the plaintiff, notwithstanding her demand for a conveyance. She also alleged that she had fully performed all the conditions of the second contract on her part to be performed, and that the said defendant, during the years 1901 to 1906, both inclusive, had likewise failed and refused to deliver the water agreed to be delivered by that contract, to her damage in the sum of $499, and that said defendant had also refused to convey the lands agreed to be conveyed to her by that contract, notwithstanding her demand for a conveyance. She prayed a judgment decreeing a conveyance of the lands to her, and a money judgment in the sum of $1038.75.
The irrigation company and the other defendants answered, admitting the contracts, and that the plaintiff had “paid in labor” on the first contract the sum of $597.75, and alleging that there was due and unpaid by reason of that contract, together with interest, the sum of $1424.34, no part of which had been paid. They admitted that the sum of $200 was paid on the second contract, and that labor was performed by plaintiff to the value of $57.50 which should also be applied thereon, but alleged there was due on that
A jury was called in the case. Whether advisory merely, or otherwise, is not clear. However, the only question of fact submitted to them was that of damages to the plaintiff by reason of the irrigation company’s failure to furnish plaintiff “sufficient water for irrigation in accordance with” the alleged contracts. In that connection the court charged the jury that, if the plaintiff did not get sufficient water due to an insufficient snow and rainfall, “the defendant would' not be liable under the contract, as that would be what the contract calls The act of God.’ ” The jury rendered a verdict for the plaintiff on the first cause of action, which was based on the first contract, assessing her damages at $400, and on the second cause of action, based on the second contract, at $150. The court itself made findings, in which it is found that in September, 1897, the plaintiff paid to the irrigation company the sum of $247.50 on the first contract. The court
The findings in respect of the second contract are also open to similar objections. The court found that the plaintiff “paid upon said (second) contract all of the consideration therein named except the sum of $207.” Then the court made the conclusion that, after crediting all cash payments, labor performed, and services rendered, which were alleged in the complaint to be $79 and admitted in the answer to be $57.50, and the damages assessed by the jury, which were $150, there was still due $207 on that contract; that is, the plaintiff having “paid all the consideration” on that contract except $207, and then after allowing the $150 damages assessed by the jury, there was still due $207.
Th© finding which the court made that the shortage of water was caused by the act of God was, of
We are of the opinion that the judgment of the court below ought to be vacated, and the case remanded for a new trial, with costs to appellant. It is so ordered.