123 P. 302 | Idaho | 1912
This is an action to recover damages for an alleged breach of contract on the part of defendant, a Carey Act irrigation construction company, in failing to make available and to deliver water for the irrigation of land entered by the plaintiff under the provisions of the Carey Act and state laws in regard thereto.
The defendant corporation, which is respondent here, admitted upon the trial that it was impracticable to irrigate plaintiff’s land from its irrigation system, and the trial resulted in an instructed verdict for the appellant in the sum of $144.15, which amount was the first payment made on her water right to the irrigation company, with interest thereon. The plaintiff, not being satisfied with the amount recovered, applied for a new trial, which was denied, and this appeal is from the judgment and the order denying a new trial.
It is conceded that the only question involved is as to the measure of damages, the respondent contending that the true measure of damages is the amount of the payment made on her water right with interest from the date of the payment, and the appellant contending that the true measure of damages is the value of the land with the water right less the amount to be paid the irrigation company for the water right, which was $35 per acre. The irrigation company also contends that only general damages are alleged in the complaint, and that the advance in the price of the land by reason of
The contractual relation between the parties to this action is evidenced by two contracts, both of which have heretofore been construed by this court in the case of Hanes v. Idaho Irrigation Co., ante, p. 512, 122 Pac. 859, to which decision reference is hereby made, where many of the provisions of said contract are quoted, commented upon and construed, and in which it was held that the respondent, the construction company, was liable for damages If it failed to deliver water under the facts of that case.
We will first determine whether the value of the land less the cost of the water right may be recovered under the allegations of the complaint.
It is alleged that on the 21st of August, 1907, the defendant corporation entered into a contract with the state of Idaho for the construction of certain irrigation works in Lincoln county, for the irrigation and reclamation of a large tract of desert land of the public domain, including the land of the plaintiff, under the provisions of the act of Congress commonly known as the Carey Act, and the acts and the laws of the state of Idaho accepting and giving force to said Carey Act in this state; that on November 14, 1907, the plaintiff made application and entered under the provisions of said Carey Act and the laws of the state of Idaho relating thereto, into a contract with the state board of land commissioners of this state for the purchase of the southeast quarter of the northwest quarter of section 2, township 6 south, range 14 east, Boise Meridian, in Lincoln county; that she has been at all times since in the possession of and entitled to the possession thereof; that on or about November 15, 1907, plaintiff entered into a written contract with defendant, made in conformity with and subject to the said contract between the state and the irrigation company, and made said state contract a part thereof, and alleges that the defendant corporation agreed to construct said irrigation works and to transfer to the defendant forty shares of the stock in a corporation
The defendant corporation in its answer admits some of the formal allegations of the complaint; admits that it entered into a contract with the state of Idaho for the construction of said irrigation works, calculated and intended to supply
The complaint was evidently drawn upon the theory that the plaintiff was entitled to recover the full value of the land with the water right as per the terms of said contract, less the cost of the water right, as she alleges in effect that she would not be able to reclaim the land and make final proof therefor and receive a patent without the water. The theory is that she lost the land because the irrigation company failed to keep its contract and deliver her the water, and thus lost the value of her bargain, which was $30 per acre for said land. On the trial the appellant offered and introduced evidence to the effect that said forty acre tract of land with said water right available for its irrigation would be worth from $60 to $65 per acre; and subtracting therefrom the cost of such water right, which was $35 per acre, would leave the land worth from $25 to $30 per acre over and above the contract price for the water right, and that without the water right the land was practically worthless; that there was no other source from which water could be procured for the irrigation of said-land at a cost that would not be prohibitive.
At the close of plaintiff’s testimony, on the motion of the respondent the court struck out all of the evidence as to the value of said land with the water right and without it, and instructed the jury that the only damages to which the plaintiff was entitled under the allegations of the complaint was the $120 on the water right, plus the interest thereon from the date of said payment; thus holding that the value of the water right and land taken together less the cost of the water
It appears that for some reason the company had ascertained that it would not be able to furnish water to the land on account of some changes in the canal, and they there offered to select for the appellant another forty acre tract, but no doubt for some reasons satisfactory to herself she declined the proposition. Had she selected another forty acre tract in lieu of that one, the price to the state would have been fifty cents an acre for the land. She would thus have been able to secure a forty acre tract of land with a water right for fifty cents per acre for the land and $35 per acre for the water right, but it was her privilege to refuse to accept another forty acre tract. There were no doubt special reasons why she preferred the forty acre tract referred to in the complaint, and it is contended by counsel for appellant in their brief that appellant no doubt was fortunate enough to secure a good number at the land drawing and thereby obtained a decided advantage in the selection of said land, and counsel state: “Lands will differ in character of soil, drainage and the like, and the proximity to a town is an important item in determining its desirability. Miss Sommerville was fortunate enough to secure a piece of high land within three miles of the town of Gooding.” Counsel also state that the “com
It is there admitted that there were special circumstances in this case that made appellant’s land more desirable than the other land, and also that the market value of said land was dependent upon special circumstances, such as character of soil, drainage and the like and proximity to a town. The loss of the prospect of a bonus or the value of the bargain which plaintiff endeavored to prove was contingent upon special circumstances which a reference to the contract does not disclose. Those special circumstances were not plead, and therefore the irrigation company had no notice that the appellant would rely upon that for aggravated damages. If the soil, drainage and location of said land with reference to a town served to make it more valuable than other tracts, those things should have been specially plead so as to give the respondent notice thereof and that it might be prepared to present evidence upon those features.
We think under all the facts of this case and the allegations of the complaint, the only damages recoverable is the first payment on the water right with interest thereon at the rate of seven per cent from the date of the payment. Had the appellant pleaded special damages that she had sustained by reason of expenses incurred, labor performed or an outlay of time which she had sustained under the contract after the execution thereof, and which she has suffered by reason of the failure of the company to comply with the terms of the contract, she would have been entitled to recover the same in addition to all the payments made on the land and water right under such contracts, with interest thereon. The object and purpose of requiring special damages to be plead with particularity is to prevent surprise to the opposite party. (13 Cyc. 179.) Where one relies on money paid out or work or labor done and for time expended, the pleader must allege