8 Wash. 98 | Wash. | 1894
The opinion of the court was delivered by
— Respondents sued to recover §1,000 damages for the failure of the appellant to dig a certain ditch, other
“To have and to hold the said premises, with appurtenances, unto the said party of the second part, and to its successors and assigns forever, subject to the following conditions, which are made a part of the consideration of the foregoing transfer: The said party of the second part, its successors and assigns, shall excavate and maintain a continuous and sufficient ditch, not less than four and one-half feet deep, along each side of its grade or embankment, across the aforesaid strip of land, to carry off the drainage of the lands adjacent thereto, and shall continue and maintain a suitable and sufficient ditch, not less than four and one-half feet deep, on one or both sides of its grade or embankment, to a point on or near the south boundary line of Skagit county; . . . said ditch or ditches to be completed to their outlets on completion of the road. ’ ’
With the written contract of the parties pleaded as a part of the complaint, it was error for the court to admit evidence tending to show terms of the contract which had not been included in the writing. By a reformation of the deed, alone, could such evidence have become competent.
But, had this evidence been admissible, it would have been insufficient. It was shown that in 1890 the county commissioners had ordered the construction of a ditch along the line of the route afterwards selected by the appellant under the ditch law of that year (Acts 1890, p. 652), but the appellant appeared, and proposed to land owners interested in the proposed ditch, that if they would donate to it a strip of land for its right-of-way, it would construct and maintain the ditch free of further cost to them. This offer was accepted, and the commissioners abandoned their proposed work. But a number of owners of land which did not lie in the route of the ditch, but which was expected to be benefited by it, were called upon to contribute money, according to the benefits to be received by them, sufficient to pay the owners of those lands which were to be taken for the right-of-way the fair value thereof. A conference of all these owners was held, and it was agreed among them that three disinterested neighbors should appraise the value of each parcel, and that notes should be given by the benefited owners to cover the awards. These notes were conditioned that they were to be void if the appellant should fail to build' the ditch, and $1,000 worth of the notes were awarded to respondents, but the failure of the appellant to build the ditch has rendered them worthless.
The rule that is invoked by the respondents seems to be that laid down in Skagit Railway & Lumber Co. v. Cole, 2 Wash. 57 (25 Pac. 1077); but the cases have no similarity in principle whatever. Cole was allowed to recover the actual, direct losses he suffered, so far as they were held to be within the necessary contemplation of the parties to an executory contract. But here there is an executed sale of land, for a certain consideration expressed in the deed; and if that consideration has wholly failed, and the provision in the deed with regard to a ditch constitutes a covenant, the usual rule of damages in such cases should be applied. Such a rule the parties must be held to have contemplated, not a rule set up and applied by an exponte tribunal of appraisers, whose action received no assent from the appellant either at the time they were appointed, or when they acted or afterwards. It is quite likely that the consideration which moved the respondents was the building of the ditch for the benefit of their own land, and the receipt of the SI,000, and appellant’s agent may have known that without both he could not secure the deed; but
Other interesting questions were presented in the case, but they are unnecessary to its determination. As the only damage alleged and persisted in was the loss of the proceeds of the notes, the judgment must be reversed, and the cause dismissed.
Anders and Hoyt, JJ., concur.
Dunbar, C. J., and Scott, J., dissent.