Aetna Cas. & Sur. Co. v. North Sterling Irr. Dist.

• Decision Date: 07 April 1924
• Docket Number: 10699.
• Citation: 75 Colo. 185,225 P. 261
• Parties: AETNA CASUALTY & SURETY CO. v. NORTH STERLING IRR. DIST.
• Court: Colorado Supreme Court

225 P. 261

75 Colo. 185

AETNA CASUALTY & SURETY CO. v. NORTH STERLING IRR. DIST.

No. 10699.

Supreme Court of Colorado

April 7, 1924

Department 3.

Error to District Court, Logan County; L. C. Stephenson, Judge.

Action by the North Sterling Irrigation District against the AEtna Casualty & Surety Company and another. Judgment for plaintiff, and named defendant brings error.

Affirmed.

Smith & Brock, Elmer L. Brock, and John P. Akolt all of Denver, and Arlington Taylor, of Ft. Morgan for plaintiff in error.

T. E Munson, of Sterling, for defendant in error.

CAMPBELL J.

The North Sterling Irrigation District, plaintiff below, is a quasi municipal corporation which was organized by owners of arid lands in Logan county. Their purpose was by such instrumentality to acquire a supply of water for the irrigation of 83,000 acres of land within the proposed district. This corporation, under the statutes of this state possessing such power, duly acquired the right to divert from a natural stream for storage purposes a sufficient quantity of water. Its system or works consist of a reservoir with a storage capacity of 83,000 acre-feet with which to irrigate the included acreage; an intake ditch leading from the natural stream to the reservoir, about 60 miles long; and an outlet ditch or approximately the same length from the reservoir running through and across the lands to be irrigated. Part of the intake ditch leading from the natural stream, and for a distance of about 25 miles meanders around the side of sandhills. On account of the nature of the soil through which the ditch was originally constructed, it was subject to breaks causing loss of water and damage to adjacent lands. To avoid these breaks and the resultant damages, the district decided to lower the ditch and build it deeper into solid earth and not to rely, as it theretofore had done, upon dams to control the ditch water. There were senior appropriators of all the available flow of the natural stream who needed it for immediate use for domestic and irrigating purposes during the irrigation season from about June 1 to November 1 of each calendar year. A state statute does not allow water to be diverted for storage in reservoirs during such period of time; hence the storage system of the plaintiff could be operated only during the nonirrigating season from November 1 of each year until June 1 of the next succeeding year, by reason of which the work of rebuilding plaintiff's ditch must be done, if at all, during that irrigating season. Section 1682, C. L. 1921. In making its contract with the copartnership firm of Quigley & Bonner, one of the defendants in this action, there was, for the reasons indicated, inserted a provision that the work of construction should begin not later than June 1, 1919, and the entire 25 miles finished and completed not later than October 31 of the same year. The contract contained the usual provisions as to the manner of doing the work, with detailed plans and specifications which became a part of the contract by appropriate reference. The contractors began work about the time specified and continued until the expiration of the time limit on October 31 and had completed only about one-third of the required work, approximately 9 out of the 25 miles. As it was apparent to them that they could not comply with the terms of the contract these contractors, of their own volition, refused to go on with it and abandoned the contract. They were paid in full for all the work they had done. It was necessary at this time for the district, in order to store water in its reservoir for the next irrigating season, to begin at once thereafter to run water through the ditch, and further excavation of the ditch during the season necessarily ceased and must be postponed and afterwards completed by the district. The district, therefore, turned water into the ditch for storage purposes, and a break occurred therein as the result of alleged defective work by the contractors, and because of their default in not completing the work the water escaped and caused injury to the plaintiff. This action is by the irrigating district against the contractors and the surety company to recover the damages thus occasioned. There was a trial in the district court before a jury, and the verdict was in favor of the plaintiff and the judgment rendered thereon is before us for review at the instance of the surety company, the contractors not appearing in this court.

Plaintiff's grievance is set out in three causes of action. The first is to recover the difference between the contract price for excavating the ditch and the actual cost of completing it; the second is to recover three separate items of damage: The first item is for money which the plaintiff was compelled to pay to the Union Pacific Railroad Company for the repair of its track which was washed out by the escaping water; the second for the repair of the ditch itself; the third for extra compensation paid to additional ditch riders which the plaintiff was obliged to employ to guard against further breaks and which would have been unnecessary had it not been for the alleged default of the contractors. In the light of the foregoing facts the assignments of error are to be considered.

At considerable length in their briefs counsel for the surety company discuss various questions whose proper solution was solely for the jury. In various answers and affirmative defenses and under appropriate assignments are discussed the alleged failure of the district to supply and furnish the contractors with quantities, a technical term including estimates of the yardage to be excavated; the places where excavation was to take place; the disposition of waste; that the contractors and the owner, without the knowledge or consent of the surety, had settled and adjusted all the differences between them, including the matters involved in this action; that various material changes and alterations were likewise made by the contractors and owner in the terms of the contract without the surety's consent; that the cause of the breaking of the banks of the ditch was not because of defects in the work of the contractors as claimed, but was due to the negligence of the district in turning into its ditch water which at the time carried large quantities of ice, and by attempting to divert into the ditch a greater quantity of water than it was calculated safely to carry. As to those and other alleged similar errors, it is sufficient to say that we have examined with care the record and the briefs of counsel, and are satisfied that no prejudicial error as to any of them was committed either by the court or the jury. One further observation we indulge is as to the assignments of error to instructions given and to instructions refused. These we cannot consider, if for no other reason, because the abstract of the record does not contain all of the instructions which the court gave to the jury. The abstract on its face shows that only a part of, but not all, of the instructions delivered to the jury are therein included. Some of these omitted from the printed abstract may have cured the alleged defects now complained of and might have been sufficiently broad and comprehensive properly to present to the jury the issues of fact and the law of the case. Bailey v. Harmon (Colo. Sup.) 222 P. 393. This court restricts its investigation to the printed abstract of the record in determining such assignments. It is for the plaintiff in error to include in the abstract sufficient to disclose error. It is not for the court to search the transcript itself to discover error. The only propositions which merit consideration are those presented at the oral argument by learned counsel for the surety company, and these we now consider, being entirely satisfied that, if there is no merit in them, the judgment was right and should be affirmed.

1. The complaint alleges the execution of the contract and its breach by the contractors to the injury of the district. One item of damage claimed was for the difference between the amount the district would have been obliged to pay had the contractors completed the entire work, and the price that must be paid if the work was done by the district or by some other contractor employed by the district. There is a clause in this contract which provides that no suit on the bond for any default whatever shall be brought after 12 months from the date on which the final payment under the building contract falls due. It was necessary, therefore, that this suit should be brought, if at all, within the time alleged. For reasons elsewhere herein stated it was impossible within that time to know the exact cost to the district of having the work, unfinished by the contractors, actually completed by the district. So, in the complaint it is in effect alleged not that this excess amount 'did cost,' or 'has cost,' but 'will cost,' a specific sum. At the trial, however, the work had been actually done and the exact amount was known. The complaint sufficiently advised and warned the defendants of the elements of damage, and they must have known also, for the reasons stated, that this particular element could not be definitely known until the work not done by the contractors had been completed by the district or by some other contractor. For this alleged indefiniteness and for the uncertain or wrong measure of damage relied upon, the defendant moved to strike such allegations from the complaint. The motion was denied. Afterwards a demurrer upon the same ground was interposed and overruled, and the defendant surety company answered. First, as to the motion, we say that the subsequent filing of the demurrer and answer, after the motion had been overruled,...