Dow v. Bryant

• Decision Date: 23 May 1922
• Docket Number: 1033
• Citation: 206 P. 1061,28 Wyo. 508
• Parties: DOW v. BRYANT
• Court: Wyoming Supreme Court

206 P. 1061

28 Wyo. 508

DOW v. BRYANT

No. 1033

Supreme Court of Wyoming

May 23, 1922

ERROR to the District Court, Big Horn County, P. W. METZ, Judge.

Action by Martin Dow, lessee, against Laura Bryant, lessor, upon a note given for rent in which defendant counterclaimed for damages to crops alleged to have resulted from shortage of water for the irrigation of the lands described in the lease. There was a judgment directed for plaintiff notwithstanding the verdict and defendant brings error. The material facts are stated in the opinion.

Judgment affirmed.

R. B Landfair, for plaintiff in error.

Courts are confined to the consideration of the statement in the pleadings in disposing of a motion for judgment notwithstanding the verdict. (4624 C. S. McCoy v Jones, 61 O. S. 119; Rheinheimer v. Ins. Co., 77 O. S. 372.) There is no provision in the statute authorizing the court to consider the evidence nor any part of the record outside the pleadings, but when the statute restricts the court to the statement in the pleadings, as the Wyoming statute does, there is no authority to consider the evidence. (Lepori v. Mattison, 80 Ore. 354.) The motion will be refused if there be a general denial in the answer. (Manning v. Orleans, 42 Neb. 712; 60 N.W 953. State v. Commissioners, 7 Wyo. 162.) The contract was absolute and required the delivery of a sufficient volume of water to irrigate the land; drouth was no defense. (Irrigation Co. v. Dodd, 162 S.W. 946; Canal Co. v. McFarland, 94 S.W. 400; Board of Education v. Townsend, 63 High Est. 514.) The act of God cannot excuse a failure to perform. (Reny v. Olds, 34 P. 216; Jones v. Proctor, 24 Ohio C. C. Rep. 80.) On appeal from judgment notwithstanding the verdict the Supreme Court cannot look at the evidence. (Aldrich v. Mathias, 141 Ill.App. 594; Commissioners v. Shafner, 10 Wyo. 181; Schlessinger v. Cook, 9 Wyo. 256.) No motion for new trial was necessary. (Butler v. Lawson, 72 Mo. 244.)

Brome & Hyde, for defendant in error.

At the time this brief is written there is pending a motion for leave to withdraw the bill of exceptions for correction and to show that at the close of the evidence plaintiff moved for a directed verdict; that such motion was denied, and exception taken. The trial court directed the entry of judgment notwithstanding the verdict pursuant to the provisions of Section 2897 C. S. 1920. The evidence not being embodied in the bill, the presumption is that the courts action was justified. Plaintiff in error ignores the statute under which the court acted; we concede that in its absence, a judgment non obstante veredicto cannot be entered where the pleadings present an issue of fact. The statute which we have cited enables the court to correct an error if any. The parties in contracting knew that water for the irrigation of the land must be obtained from the river through the ditch in question. The parties are bound by what they intended to be bound by. (6 R. C. L. 225.) It was intended that the lands should receive the water to which it was entitled through the canal in question and nothing else. Where performance of a contract becomes impossible by the cessation of the existence of the thing which is the subject matter of the contract, the obligation will be construed as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible by the perishing of the thing without the fault of the promisor. (1916 F. L. R. A., 53. Bruce v. Gas Co., 46 Ind.App. 193; Jackson County v. Independent, 188 Mo.App. 157; Land Company v. Harriman, 68 N.H. 74; Ward v. Vance, 93 P. 499.) The water in the spring failed on account of drought, and the lessor was held excused under a proper construction of the agreement.

H. B. Landfair, in reply.

The contract was positive to furnish land and water without qualification. The rule urged by defendant in error as a basis for excuse has not been uniformly accepted by the courts. (Berg v. Erickson, 234 F. 817.) There was no reason for judging a contract by extrinsic evidence, it being plain and positive on its face. The jury found against the plaintiff. The rule is that where there is a positive contract to do a thing in itself unlawful, the contractor must perform it although in consequence of unforseen accidents the performance has become burdensome or impossible. (Pollack Contr. 362.) Where one of two persons must sustain the loss, the law casts it upon him who has agreed to sustain it, or, rather, the law leaves it where the agreement of the parties has put it. The granting of a judgment by the trial court non obstante veridicto should be reversed.

POTTER, Chief Justice. KIMBALL, J., and BLUME, J., concur.

OPINION

POTTER, Chief Justice.

By a written contract of lease the plaintiff rented to defendant for one year from the first day of March, 1919, certain described land in Big Horn County, "together with sufficient water from the Lewis extension of the R. Bahr Canal to irrigate" the same, for the sum of Five Hundred dollars, "payable December 1, 1919, for which amount Lessee shall give to Lessor his note, dated March 1, 1919, with interest at 6% from date." The note was executed and delivered to plaintiff by the defendant; and this suit was brought upon the note to recover the full amount of principal and interest.

The defendant's answer admits the execution of the note, and alleges as a defense thereto, in substance, that the plaintiff agreed and covenanted to furnish the defendant with sufficient water to irrigate the land; that the amount of water furnished was insufficient, causing the loss of a large part of defendant's crops and a net damage to him of $ 1997.50, after deducting the alleged value of the use of pasture upon the premises. And judgment was prayed for that amount, less such sum as may be found due to plaintiff.

The plaintiff replied, denying that she agreed to furnish sufficient water to irrigate the land and alleging that when the lease was executed and prior thereto the plaintiff and defendant both knew that the land could be irrigated only through the canal mentioned in the lease, and that the right with respect to such irrigation was limited by the supply of water obtainable from Greybull river through said canal under a permit issued by authority of the state as provided by law; that the water in said river was abnormally low during the irrigating season of 1919, owing to the absence of sufficient snow in the mountains within the watershed of said river and the absence of rain, resulting, without any fault of plaintiff, in said land and all other land in the watershed of said river being deprived in some measure of the normal supply of water for irrigation purposes; that defendant received through said canal during the said season all the water for irrigation purposes that it was possible to obtain from said river, and all that plaintiff agreed to furnish, and all that defendant expected or was entitled to receive; that the parties had in mind that defendant should receive only such supply of water as might be obtained by means of said canal from said river under said permit, and that he did receive all that was contemplated by the lease. Other matters were alleged in the reply that are not material to the question upon which the cause was determined in the trial court and is now submitted to this court.

The case was tried to a jury, and at the close of the evidence the plaintiff moved that the jury be instructed to return a verdict in her favor for the amount claimed in the petition. That motion was overruled, the plaintiff excepting thereto, and the verdict was for the defendant, assessing his damages in the sum of one dollar. Thereupon plaintiff filed a motion for judgment non obstante veredicto upon the ground that upon the pleadings and the evidence the plaintiff was entitled, as a matter of law, to recover the full amount due upon the note sued upon, including interest and attorney's fees. That motion was sustained by the trial court and judgment was ordered and thereupon entered in favor of the plaintiff for the amount so claimed.

The defendant excepted to the ruling sustaining the last mentioned motion and the judgment so ordered and entered, and has brought the case to this court by a proceeding in error, assigning as error the ruling upon said motion and the judgment rendered as the result thereof.

The first contention of counsel for plaintiff in error is that the trial court erred in considering the evidence in the case upon the motion for judgment non obstante veredicto, and that such a judgment is authorized only under Section 4624, Comp. Stat. 1910, now Section 5895, Comp. Stat. 1920, which provides that, "when, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party." That is one of the original sections of our code of civil procedure, and it may be conceded that until 1915 it was the only authority for such a judgment where there was merely a general verdict. But a statute was enacted in that year (L. 1915, Ch. 134), now Section 5897, Comp. Stat. 1920, under which the trial court evidently acted, providing as follows:

"When in the trial of a civil action, a motion is made by either party that a verdict be directed in favor of such party, or an instruction to that effect is requested, and the motion or instruction is denied, the trial court, on motion of such party for a new trial or for judgment notwithstanding the verdict, may order judgment to be entered in favor of the party who was entitled to have a verdict directed in his favor; and the Supreme Court, in reviewing the judgment upon...