*1 REPORTER 162 SOUTHWESTERN (§ 261*) proper 16. special charge Waters and Water Courses fourth [10] The —Ir rigation— Insufficiency Supply —Ex ly con the written denied. It assumed cuses —Act of God. case, in the considered tract alone was to he irrigation com- The fact that defendant pany ignoring tending years invalid facts to show for about 10 the season before 1910 had river, 10 water from the Colorado ity. of error The fourteenth such had such and that at no other time overruled. years before the season of 1910 twenty-first inclusive The fifteenth to the supply failed, its fail- water ure did show by drought due meritorious, and are overruled. are ground excusing God,” "to the “act of it on judg- herein, the indicated Eor the errors furnishing as con- water for that season reversed, ment and the cause remanded. tracted. cases, [Ed. and Note.—For see Waters other Dig. Courses, 261.*] Water § Dec. 7. and God.” Words Phrases —“Act of defined The term “act of God” result natural causes of such NORTHERN IRR. CO. v. DODD. pro- reasonably and not have foreseen against. (Court Appeals vided of Civil of Texas. Austin. Nov. On 1913. Motion for Rehear definitions, [Ed. Note.—For other see Words ing, 14, 1914.) pp. Jan. Phrases, 118-126.] vol. (§ (§ 1. 303*) 263*) 8. Waters and Contracts Water Courses —Breach—Defenses— —Ir rigation — — — Act God. Contracts Actions Peti expressly statute, In absence of one who tion. thing rule excused contracts to do a from is not as a To recover for a contract to (cid:127) im- rendered because it is irrigation, plaintiff furnish water for need not possible by an act of God. allege negligent failing that defendant was Contracts, water; negligence cases, [Ed. furnish to excusing absence of Note.—For other see 1409-1443; Dig. Dig. § 303.*] breach of Dec. §§ contract. Cent. cases, [Ed. other Waters Note.—For see and- Kehearing. On Motion Courses, Dig. 324; g Dig. Water Cent. § Dec. (§ 261*) Waters Water Courses —Ir rigation — Breach of Contract —Excuses - (§ 263*) 2. Waters and Water Courses —' —Act of God. Irrigation —Actions—Petition—Terms rule that to the Contract. nonperformance of act God will excuse suing One for breach of fur- contract to where a it particular which excuses allege nish depends water for need not in the aof the continued existence petition providing thing to ex- ceases damage apply nonperformance $4 an acre should be the ist, maximum al- to excuse would lowed for failure to furnish the water. to furnish water a contract stopping prevented by ter the usual wa- cases, [Ed. Note.—For other see Waters and providing supply; the contract Courses, Dig. 324; Dig. Water Cent. § Dec. § stipulating payment amount of a certain 263.*] per to fur- in case of failure acre Appeal — (§ 1039*) and Error Harmless nish water. Pleadings. Error — cases, see Waters [Ed. Note.—For other allege petition Failure to Dig. Courses, 261.*] § Dec. Water plain- on, sued limited (§ 152*) 10. Contracts recovery amount, —Construction. tiff’s to a certain impli- change by should hesitate Courts defendant, was harmless to the the en- express contracts. terms of cation evidence, tire contract was read Contracts, cases, plaintiff’s recovery see Note.—For other [Ed. court limited limited to the amount Dig. Dig. 732, 733, 152.*] Dec. § §§ Cent. the contract. cases, Appeal [Ed. Note.—For other see Matagorda Appeal Court, from District Dig. Error, Dig. 4075-4088; § Cent. §§ Dec. Judge. Styles, County; Samuel J. 1039.*] against the Northern E. J. Dodd Action op (§ 8*) Exceptions, Bill —Exclusion judgment Company. Irrigation From op Evidence. appeals. plaintiff, Affirmed. exceptions, A statement bill of evidence, the exclusion of that “defendant of- Bay City, Corbett, & Gaines prove” equivalent fered to the facts stated is Murphy and & Holland & Krause Wil- lant. to a statement that witnesses tes- according offer, tified not appellee. so that bill is Bay City, son, all of objectionable on the that it does not state what the witnesses would have tes- Findings of Fact. tified. cases, Exceptions, see brought [Ed. Note.—For other Appellee JENKINS, suit to re- J. Dig. Dig. of, 8.*] § Bill Dec. § Cent. damages against appellant for failure cover (§ 261*) irrigation purposes, 5. Waters and Water Courses water for —Ir rigation Contracts —Breach. undisputed evidence irrigation company con- Where defendant entered shows plaintiff sufficient to tracted whereby written irrigate land leased defend- plaintiff’s rights upon ant, breach of contract acres of was to lease to are failure furnish water’ measured year belonging it, for the contract; irriga- that it was an the tion contract fact planting seed for to furnish the the same being immaterial. proper irrigation “water for the rice cases, [Ed. other see Waters Note.—For planted Dig. Courses, the rice the above- § 261.*] Water Dec. Dig. Key-No. Rep’r topic Dig. Am. Series Indexes *For oases see same and section in Dec. NUMBER *2 Tex.) IRR. 00. DODD NORTHERN
plant; fail to furnish between canal or natural irrigating imum provided ly irrigate ever, described land from its of the reason ments should have $4 tion ten set out that premises, per in the measure of nish ter one-half of this amount. by general ly pleaded account of lant, negligence ner and premises, with pellant complied demurrer water. rigated party limited tract. that he raised thereon. fall.” sufficient make a make a he would have raised on said tract. case the which ure. cause tract to cultivate said land in a first exceeding Appellee complied The [1] [2] per damages after appellee acre. The bound enough assignment the alleged that should the water, but for been worth Appellee alleged of appellee’s petition damages first are to acre, appellee Appellant event This rainfall, Appellant’s Appellant’s proposition appellee’s crop pumping plant, which, the natural about party insufficient the towas being then the first crop should have supplied $4 said part negligence to furnish water to that damages this was for this amount. and the amount water, parties first rice did not set portion of rice on per $4 they negligent enough court special of the first on land. allowed bound himself well understood is to furnish water excuse for a breach of con will rainfall have one-half of the crop, failed Opinion. especially acre for the land with its .$27,000, part claim said land was a sustained, effect middle second error second and third found with his instructed acre should the jury hereto would be not rainfall, by party of contract. Hack of on demurrer, water, crop any failure to the that or the natural rain- nesses water been appellee. sufficient to the natural out all will be sufficient did not party whereby appellant canal returned suit to failing part and he overruled for water, understood, furnish of of that said that its part June, above-described contract damages sustained, its demurrers to either together the appellee, rice shall forfeit fails proper or be the max and rainfall, a sum not allege the reason rado of the con- were under recover reason fail jury exceeding total and there A. M. first said answered a verdict the writ sued for pumping from together on had did special- proper- general supply not ir- to fur- assign son, agreed appel which Northern party man- how- peti with part crop fail- said said bill of con- It is as wa- mit the his be its its on $4 to had suffered petition was not part have been uary, entire pump is, of river, source, had to and ing crops neer, nal, fendant ror refusing rado ure intake to be raised tween court limited $4 water could on the canal chinery assignment canal; through been awas entered into from ent, operation June, orado canal; ed cause in the [4] [3] recovery. per no plaintiff’s rice, from the Colorado canal); times complains to think procured Appellant kept of the river went Appellee objects had, Besides of the other river; A. contract was read or an increase A. D. river, so was the water and if there had been a rise in said Anderson, would have Colorado time failure of water furnish water complete plaintiff. acre. all of the water that was needed that no rice was the contract stated a that including defendant incumbent of company kept the defendant the intake to follows: “Be it remembered: That ,D. trial from said liver for the would have been able to usual Irrigation prior' for about ten the bill fuel harmless, to wit: The court refused to August Kelke, supply the permit of perfect that prior be obtained on. the contract appellee’s right water'from of the sole rea'son for this, for in its fourth error for the reason court, year 1910, breach of the contract. river, failure of the water does not state what the the faith dry. good manager, its failure of the water at farmers the testified as of hand, on the or the the season provided condition and a matter of fact it did and the defendant was for which customary on such season had there defendant for prove by to to our cause action and water could be appellee following manager 10th his error, river, the the water from the company, supply grown years, pumping plant from the Colorado numbered canal and that the Colo- on no supply J.B. assignment evidence, crew limited his entered of 27th considering reason refused of the the defendant’s for being supplied of to this if reason of and from the kept action, the witnesses that the to the Colorado had been moment that or harvested crops in the Colo is sufficient superintend source Jones, of said de recovery proceedings on day any, the failure time there plead that supply ready that court that into and 15th matter. of supply on the supply and would of er- river engi (that This that they Jan styl that fail- per- wit per Col sea ma the the the the ca be up in at to it REPORTER SOUTHWESTERN *3 n plaintiff, mit or consider said that failure of the water rado river did not the contract sued refusing liability sider the same for the reason defendant such defendant offered to ing instant case. There the he owned or and that the mony to water matter tion the case W. 154. We do not think that the announced which for as proof paragraph of how far an fer limit its nor has he In that case or shall be divided rata, equivalent would have testified in accordance dition case. be entitled owner joining cept offer. al Co. v. canal, of W. aught ute to pany owner under his lease ganized adjoining contract entered of the land pellant’s by [5] In the instant ease persons announced the case of provision shortage its terms. not, language irrigation purposes. alike liability court erred in appears act such according cause, does offered, as it saw and said demand or is In reference for failure under the laws of this to liability instant case because liability as cause, the land leased Gyle, contiguous applicable who then and there to a statement that the permit the charter of his to, of this appears 1895, had no to which support that could be watered for such cause. We in the contract sued Raymond court declined to had from “defendant offered preference as pleased, to water from irrigation have 36 contiguous arise bound such servic’e from among%ll possessory the water to be distributed act the amount he or fit.” by exempt court said: there was set forth upon to him thereto, such Tex. this ease, he obtained is not the owner of possessory right testimony possessory opinion, failure to furnish water refusing of' its prove reason of the provided upon action of the end that all shall suf itself to furnish water law, appellee bill the facts supply testimony, limiting appellant’s Civ. right is could lease supply canal be Oo. must be measured because there Moore-CortesCan- ten record, drought, to the right the facts of applicable under the excepted.” to the land for proposition appellant. no App. given appellant think the mentioned, under the stat- cause rights, hear v. to consumers “that alleged facts, water to right, company, provision in the Colo- liability to Erp, permit upon state, think that or such con- owned with said contract. We irrigation had preceding any witnesses canal, to none.” this case. they may fact that an act of prove” the com- land question accident was the and, law, to land not the fered to entitled set in case to con- irriga to the 146 S. except its ir- limit- 82 S. testi- lease cites This land law, this pro the for ad- ap- ex- dence or- as act in in is nish water sufficient that it the fact that was intake the record to show leased fered, rigation plant. At appellee ord, about ten times would have shown period, tract. The general ter for water such appellant to from tiff’s taking in Texas for ten to water from other farmers on the reasonably ure of the be taken compliance lands but is ment in season of 1910.” lant’s of contract season against. he will W. result of son of the Such been’ obligation law [6] 5. [8] [7] prove least it is certain that the land leased statute. out, reasonably court erred may years been lands, fact is rice, said river for the subject offered supply as shown there not a sufficient failure by appellee, provided it for it can irrigation (1910) was God. law with reference Cyc. Appellant Regardless the bill of was the have been the been appellant bound itself that operation. such God operating act years, had there or the act of for with its contract have crops mean that canal, proof prevented a sufficient Am. & the Colorado river of “It had 758. We in the Colorado be had there been granted of God to Had the think this case rests admitted, “that at aught no natural by permitted himself said that This, been foreseen irrigation land of not been purposes on God, ten offered was irrigation person seeks to anticipated. except years excluding Co. its bill of water a well-established that it was 1910 exceptions failed Eng. fact, one compliance supplying defendant’s may that at excuse years Appellant at no time by whether or from property we excuse no time proof of a irrigation else, causes irrigating we course, Ency. they had irrigation canal.” This appellant, there is prior any land, Milling creates its contract to be defined such could be to appears shown is such excuse do not a severe there were other from said to express upon doing common do not think immaterial. comply such unless irrigated excuse himself all times which was think that it offered contracts, for the water to drought could Law, pp. which it had prevented failure of its as prior failure. with its con the means through the canal. during said further Co., supply wa- nothing itself think plant any given testimony. appellant. so charge or appellant or a procured upon the and that but that provided to be made crops that, be with its the carrier, by rea to such for the rule by breach 143 appel canal, plain- state- same, prior must from But, fail “for fur- rec- evi not of all of by to S. y. Tex.) IRR. CO. DODD NORTHERN render- contingent of God tract is pleading therefrom ing an act on the continued ex- impossible.” 1 Am. istence of thing. Appellant Eng. Ency. p. Law, principle insists that applicable 58S. simply case, instant “A because contract is not invalid inasmuch as the evidence shows unreasonable, parties difficult, that both expected it burdensome, turns out to be to the contract Oye. p. dangerous.” water would be obtained from the impos- Colorado in specified becomes river. “Where the But it was not so making con- subsequent contract. A sible tender of water in promisor lant’s ditch, tract, that the rule is suitable for purposes, discharged. old case: wells, As is obtained or from charge, source, and other creates a compliance ‘Where the law the any would have been a perform without with is disabled It does not *4 pear him, physical will excuse law impossibility in there the that it fault was a appellant party him; but, comply his own con- of where the with its contract ac- upon himself, charge duty count tract creates a he is bound of the failure of the water the Colo- notwithstanding good, river, to make rado show in necessary which it would be necessity, by because event, appel- inevitable accident in order to excuse by provided against ought drought. he to have lant account of is no answer ” exception Oye. 627, say 628. An necessary contract.’ to water from been option 9 to have obtained the performance con- this rule is where the other source would have by prevented very expensive. law. tract is had the transporting goods im- is of under its contract to either incur such carriers; posed upon by expense so pay common damages, law additional not or to irriga- upon exceeding act of 1895 it tion $4 acre. companies to lands water as Norton, supra, In Dexter v. the court said: contiguous adjoining ir- obliged of others “The would not have been impose canal; rigation accept any law did but the to specified other cotton than the bales irrigate own any duty bought In instant note.” so to do particular specified itself land. and made no It bound case no contract, exception by act probable reason and it is the water accident, we are contemplated of or inevitable God to be furnished was exceptions liberty read such not at the contract. Colorado river the time the contract was any particular made. Nor is which the water was to source from judgment stated, the For the reasons obtained mention- affirmed. appellant expected trial court ed. It is true that tain appellee expected to ob- Affirmed. from the the water Colorado so, but would do Rehearing. Motion for On bring this is not sufficient to this contract exception pass specifically Appellant requests within the mentioned. tous Hibbard, 102, N. In Summers 153 Ill. 38 assignment error, v. which is on its fifth Rep. 899, 874, both refusing E. 46 Am. St.- doubtless allow it that to the court erred parties contemplated that the iron contracted on his cross-examination prevailed for should be manufactured defendant’s unprecedented drought mill; 170, Hill, (Ala.) so in 4 Port. Matagorda county along McGee the Colorado 277, Am. Dec. it is evident from the throughout 29 of 1910. river season expected interposed it was defense the for the reason that overrule this appellee’s should be corn contracted to be delivered act God no defense to farm; was not but it on defendant’s raised cause of action. specified contracts, courts and the so refused to read tracts [9] To the rule that the act God provisions into the con- perform these is no defense to the failure to a con implication. tract, exception, viz., there is an where the Water Co. v. performance depends In of Middlesex the case Whiting Co., Law, 240, Knappmann 64 J. particular per N. continued the son or existence of a Rep. 572, thing. 692, Calnan, Am. 514, R. A. 81 St. L. Wells v. Mass. 45 Atl. 467, 49 an 107 pro- accident, Rep. 65; Norton, where inevitable Am. 9 62, Dexter v. N. Y. 47 interposed Rep. 416; Fitch, for in the Am. vided 7 Nicol v. Mich. 115 quotes approval 988, Rep. .defense, N. a 72 W. Am. St. 548. We found, however, in Dam Co. v. Mr. Shaw but two characters Chief Justice (Mass.) Hovey, as follows: ap Pick. cases which this has been plied: good personal rule seems to be sense of the this: One is service tois happened, where, performed, if an event agrees That must case as where one another, inevitably marry agrees paint loss to one cause or an artist party picture; contracting parties, who has con- the other is where the continued happen, particular thing, shall such an event existence basis which is tracted although contract, perform specifically agreement, necessary cannot may happen the event contract. because In such cases through necessi- of God inevitable implied act courts have said that there is an good agreement yet make ty, that risk and shall take of the con- SOUTHWESTERN REPORTER Beasley against consequence X. Action Y. others loss shall occur contemplated. Missouri, happening the pany. Com- Kansas Texas of the event judgment plaintiffs, contracting From de- the conse- thus takes appeals. quences.” Case above fendant Affirmed. In the Water See, question also, as to the source 160.S. cited there was W. obtained, from which nor contemplated water was to be Singleton, Jefferson, Schluter & and Alex. machinery by as to the Dallas, McKnight, S. A. H. Coke and both supplied, but nei- it would be appellant. H. for dergast, Jones & and F. Pren- Bibb things ther of these were mentioned appellees. Marshall, all of event In case the the instant hap- should contracted HODGES, October, 1909, J. appellee’s pen should suf- was that Beasley against lee instituted this suit particular water water. No fer for want of Railway Company Marshall East Texas agreed then in ed, existence be furnish- appellant, Missouri, & Texas Kansas and no was made case there Railway Company Texas, drought. should be injuries personal peti- sustained. The him [10] The maxim as man binds alleges day August, tion that on the 28th one, self shall he sound be bound is a employ was in the express change con courts hesitate Railway Company *5 East Texas Marshall & may by implication. tracts engineer passenger as an trains one may willing not have been to contract to running Marshall and Winnsboro between appellant’s payment of cultivate damages, land without state; that, Winnsboro, while at if failure to discharge necessary duties, he of his by drought. All be occasioned engine along be moved one of caused his say that we can in this case is that he did & East furnished the Marshall the tracks so, liberty and we at to make did not make are Company Railway place, for at that Texas a contract for him which it, examining testing purpose the with defects watching for himself. locating repairing certain a view rehearing is motion for a overruled. along therein; walking that, while machinery slowly moving of the stepped upon locomotive, or stumbled MISSOURI, K. & RY. OF TEXAS piece timber, T. CO. pole, that had over et BEASLEY al. left, placed, “negligently or allowed (Court Appeals along track at the side of Civil of Texas. Texarkana. remain Rehearing Dec. Denied piece of timber point, and that 1, 1914.) Jan. plaintiff away, stumbled slipped, or rolled (§ 256*)
1. TbIAL down, plaintiff throwing —INSTRUCTIONS—SUFFICIEN same, over Earnings. CY—FUTIIEE engine; throwing under foot his complain Defendant that an instruc- cannot leg, passed personal injury action, plaintiff over his foot wheels tion in a reason- should be a sum badly allowed crushing the same same ably compensate him for time lost amputated.” Then follow other had to be allegations any, future, time lose if he would necessary mention. here to earning capacity in the for Ms decreased fu- physical suffering, etc., ture, succeeding portion petition, and mental In a stating was defective in that the value count, separate termed what .is plaintiff might time the future lose following: shows crippled should be measured its value his special arrangement, condition, request terms of which exact where it some are unknown did not charge supplying such omission. plaintiff, and some con- eases, Trial, [Ed. Note.—For other see Cent. Marshall the defendant tract between Dig. 628-641; Dig. 256.*] §§ Dec. § Railway Company and de- Texas East Earnings Damages — (§ 100*) — Future Railway Missouri, & Texas Kansas fendant Value oe Time. Texas, Mar- negligent- time one The value of the Railway Company ly injured juries Ms used lose in- Texas will future shall & East he will be should be estimated what tracks, tracks, and switches side the Missouri, crippled condition, earn and not able to what Railway Company & Texas Kansas uninjured. he could earn if Tex., entering Winnsboro, Texas cases, Damages, [Ed. Note.—For other see Winnsboro, having Dig. Dig. 237-241; town of § 100.*] Dec. the passenger Cent. §§ town remain at said train (§256*) Trial oe Grounds —Preservation hours, —Instructions—Request—Necessity. or more for one Winnsboro which time merely in not an instruction is defective If necessary repairs were complete, complaining being must engine required to be made were requested supplying an instruction complain Com- & East Texas Marshall order to thereof omission peal. engineer; pany by the en- while cases, Trial, Note.—For other see engineer [Ed. Cent. running as gine upon he was Dig. Dig. 628-641; Dec. §§ § 256.*] sta- track at said placed said plaintiff’s to have Appeal Court, tion, became the from District Harrison Coun- along Judge. engine track for Buford, ty; moved W. C. Dig. Dig. Rep’r Indexes Key-No. Series topic see and section & Am. *For cases same NUMBER in Dec.