Carolus v. Arkansas Light & Power Company

• Decision Date: 02 June 1924
• Docket Number: 16
• Citation: 262 S.W. 330,164 Ark. 507
• Parties: CAROLUS v. ARKANSAS LIGHT & POWER COMPANY
• Court: Arkansas Supreme Court

262 S.W. 330

CAROLUS v. ARKANSAS LIGHT & POWER COMPANY

164 Ark. 507

No. 16

Supreme Court of Arkansas

June 2, 1924

Appeal from Arkansas Circuit Court, Northern District; George W Clark, Judge; affirmed.

Judgment affirmed.

Geo C. Lewis, for appellants.

1. These are the established and salient facts: The owner leased the rice farm to a share-cropper, under an arrangement whereby they were to become equal owners, or tenants in common, of the crop. The owner arranged for electric power with a public service corporation, and, knowing that the tenant was unskilled in the operation of electrical machinery, arranged also that the company should exercise general supervisory control and direction over the machinery and keep it in operation. The tenant, in reliance on this arrangement, undertook to make the crop and to carry out his part of the contract, and the company undertook to install and keep in operation the machinery, and to give the agreed supervisory service. We think the court erred in dismissing the tenant from the case in limine, and that the correct rule is stated in Ruling Case Law, p. 884. See also 144 Ark. 8; 46 Ark. 132; 65 Ark. 27; 93 Ark. 346; 121 Ark 414.

2. In this case the agreement was made solely for the purpose of enabling the appellants to make a rice crop. The company undertook to carry out its contract with knowledge that failure upon its part must inevitably entail loss to the rice crop. This case does not differ in principle from the case of Harrington v. Blohm, 136 Ark. 231.

John L. Ingram, for appellee.

1. The tenant, Burger, was not a party to the contract sued. While it is true that, where a promise is made to one party for a sufficient consideration for the benefit of another, the beneficiary may sue, that is true only where the contract was made for the third party's benefit as the direct and primary object, or the promisor has received money or property in the nature of a trust, under which the duty devolves upon him to perform the promise. Benjamin on Contracts, 66, and cases cited; 98 U.S. 124, 77 No. 307; 117 Pa. 606. Aside from this, Burger, in his lease contract with Carolus, agrees "* * * to look after electric motor and see that it is properly operated * * * to look after the motor and improvements and take good care of same, except usual wear and tear of such improvements." He was therefore joined in a suit for damages against appellee for failure to perform duties which he himself was to perform. His duties were fixed by that contract, which was made on April 19, 1921, whereas the contract between Carolus and appellee was not entered into until in June following. The lower court was right in holding that the damages sued for were remote and speculative. 128 Ark. 167. But whether remote and speculative or not, is immaterial. It was necessary to prove actual damages, and appellants neither proved nor offered to prove such damages. C. & M. Digest, § 1231.

OPINION

WOOD, J.

Dr. Carolus, a citizen of Illinois, owned a rice farm in Arkansas County, Arkansas. On the 19th day of April, 1921, he entered into a contract with one J. W. Burger by which he leased the farm to Burger for the year 1921, and agreed to furnish a complete irrigation well, with all the electric appliances and power for operating the same. Burger was to look after the electrical motor and improvements and to take good care of the same, except as to wear and tear, and see that the motor was properly operated, and haul lubricating oil for the motor and pump. He was to cultivate the land, and the crop was to be equally divided between him and Carolus. On June 15, 1921, the Arkansas Light & Power Company (hereafter called company), a corporation of Arkansas, entered into a contract with Carolus, which, after reciting that the company had been engaged in furnishing electrical energy to Carolus for pumping purposes, agreed that it would continue to furnish electrical power to Carolus' premises as from May 1, 1920, for a period of five years, at a stated compensation, to begin on May 1, 1921.

This action was instituted by Carolus and Burger against the company to recover damages for injury to their rice crop. They set up the lease contract between themselves, and alleged that the company had sold and installed the motors on the rice farm of Carolus, and that it was under contract to supply the power to operate the same, knowing that plaintiffs could not obtain water to irrigate the crop in any other manner; that the motors required technical skill for their installment and subsequent operation, and that, as an inducement to the sale of the motors, the company agreed to properly install the same and to supply the technical skill and direction necessary for their operation during the crop season of 1921; that the company directed that no alterations, repairs, or changes should be made, except upon its direction; that the company failed to properly install the motors, and failed and neglected to give proper direction and supervision to the operation of same, thereby causing the pumping plant to be idle frequently; that, because of such defective installation and operation, one of the motors set fire to the building in which it was housed, and both building and motor were destroyed. Plaintiffs alleged that, but for the interruption to the operation of the pumping plant and the shortage of water which was essential to the rice crop, the plaintiffs would have made at least 6,800 bushels of rice, worth 90 cents a bushel, which they had planted on the one hundred acres, in reliance upon the company's agreement; that, because of the company's default as mentioned, they made only 1,536 bushels of rice; that the net damage to plaintiffs, because of such default, amounted to the sum of $ 4,000, for which they asked judgment.

The defendant answered, denying the allegations of the complaint as to damages and as to its alleged default in performing its contract. It averred that "it had nothing whatever to do with the operation of the pumping plant and nothing to do with its installation, and was under no agreement to direct the operation of the same." The defendant also moved to strike plaintiff Burger as a party, alleging that he had no interest in the suit, and that the complaint did not state a cause of action as to him, and that he was improperly joined as party plaintiff.

The court sustained the motion, and the cause proceeded between Carolus and the company.

Carolus testified substantially as follows: That, during the year 1919, he ascertained that one of the motors on his rice farm was too light, and entered into negotiations by which the company, for the sum of $ 80, agreed to take the lighter motor and install one of higher power. As a part of the agreement for the exchange, the company agreed to keep up the motors and superintend their operation. During the year 1920 the company furnished current, but the service was imperfect, and, after the pumping season was over, witness complained to the company, stating that he had practically lost his rice crop on that account, and that he did not want a repetition of it the next year. The company assured him that he would be taken care of the next year, and would have no trouble. The next year witness entered into the lease contract with Burger and into the power contract with the company above mentioned. Witness testified that the clause in the lease contract which required Burger to look after the electrical motor and see that it was properly operated and to haul lubricating oil, etc., simply meant that Burger was to start and stop the motor, oil it, etc., but, when any trouble developed, he was to notify the company, and it was to send out its own employees to remedy the difficulty, in accordance with its contract. Burger was not an electrician, and witness was not an electrician, and did not know whether the motor acquired from the company in the exchange referred to was properly installed, but such motor gave trouble until it was burned.

Burger testified, and explained the method of operation of the pumping plant and as to the defects therein. He stated that the company's manager told witness that the relift plant was so wired that the company had only one man to take care of it, and he came and started the motors. The company's manager told witness not to do anything to the motors when there was trouble, but to notify the company....