Durkee v. Carr

• Decision Date: 31 December 1900
• Citation: 63 P. 117,38 Or. 189
• Parties: DURKEE v. CARR.
• Court: Oregon Supreme Court

63 P. 117

38 Or. 189

DURKEE v. CARR.

Supreme Court of Oregon

December 31, 1900

Appeal from circuit court, Klamath county; Henry L. Benson, Judge.

Action by George A. Durkee against Jesse D. Carr. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action to recover damages for the breach of an alleged contract. It is substantially averred in the complaint that on May 15, 1898, the defendant, by J.F. Adams, his authorized agent, demised to plaintiff for the term of five months 200 acres of arid land in Klamath county, Or., and in the written lease covenanted that he would, free of charge, construct all main ditches to and upon the premises, and furnish sufficient water from the Little Klamath water ditch properly to irrigate the same where practicable, in consideration of which the plaintiff agreed to plow and sow the land, chiefly to wheat, and to deliver one-fourth of the grain raised, as rent therefor; that in pursuance of the lease the plaintiff entered into possession, plowed and sowed 185 acres thereof to wheat and barley, and in all respects fully complied with his part of the contract in so far as he was allowed to do so by defendant's said agent, but defendant, though often requested so to do, neglected to furnish any water for irrigation, thereby rendering it impossible to raise a crop on such land, to plaintiff's damage in the sum of $1,826.87. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action having been overruled, an answer was filed, denying the material allegations of the complaint, and a trial, being had, resulted in a verdict and judgment for plaintiff in the sum of $1,090, and the defendant appeals.

C.A Cogswell, for appellant.

A.S Hammond, for respondent.

MOORE J. (after stating the facts).

It is contended by defendant's counsel that the testimony was insufficient to establish Adams' authority to execute, as defendant's agent, the covenant to furnish water, and hence the court erred in admitting the lease in evidence over their objection and exception. The testimony shows that the defendant owns a section of land in said county, incapable of producing grain without irrigation; that in the spring of 1898 he caused it to be prepared for cultivation by grubbing up the sagebrush growing thereon; that, being a resident of California, he wrote to Adams, requesting him to lease said land to be sowed to grain, reserving for rent such a share of the crop to be raised as he might think proper but did not suggest that any water should be furnished for irrigation. In pursuance of such correspondence Adams executed, in the defendant's name, a written lease to plaintiff, containing the following stipulation: "The party of the first part covenants and agrees to furnish water from the Little Klamath water ditch sufficient to properly irrigate said tract, where practicable, and to construct all main ditches for conveying said water to and upon said tract free of charge." Adams also leased other parts of said section to Thomas Bailey, R.C. Anderson, Thomas Roberts, and Bert Davis, respectively, who entered into possession thereof under leases containing a like covenant. In May, 1898, the defendant visited said land, saw the wheat growing thereon, and knew that it had been leased, but until about July or August of that year he had no knowledge of the existence of such covenant. J.F. Adams, as plaintiff's witness, on cross-examination testified that he had no authority from the defendant to agree to furnish water to the plaintiff or other lessees for irrigation.

The foregoing is a fair summary of the testimony respecting Adams' authority to execute the covenant relied upon, and, while the bill of exceptions does not purport to contain all the testimony given by the witnesses, the court certifies that, except so far as it can be inferred from the arid character of the land, no evidence was introduced to show that it was necessary to agree to furnish water for the irrigation in order to effect a lease of the premises, or that it was a custom in that vicinity for landlords to furnish water to their tenants to irrigate the premises leased, or that the plaintiff had any knowledge of Adams' instructions to lease the land, or that the latter had ever acted as defendant's agent, or was held out by him as having authority to execute a covenant to furnish water for irrigation, except as the execution of the leases of other parts of said section might lead to such an inference. Adams' power to lease the premises having been admitted, the question presented for consideration is whether the testimony adverted to is sufficient to establish his authority to agree on behalf of his principal to furnish water to the plaintiff, to be used in irrigating the land so leased. The rule is elementary and universal that every grant of power by a principal to his agent, where no limitations are apparent, is to be construed as carrying with it, as an incident thereto, the authority to do all things proper, usual, necessary, and reasonable to carry into effect the objects and purposes sought to be accomplished by the authority conferred. 1 Am. & Eng.Enc.Law (2d Ed.) 997; Mechem, Ag. § 311; Story, Ag. (9th Ed.) § 60; Whart.Ag. § 126. But stipulations in a lease executed by an agent whose authority therefor is not reasonably implied in the power delegated are not binding upon his principal. Thus, in Halbut v. Town of Forrest City, 34 Ark. 246, it was held that a power conferred upon an agent to lease certain premises did not authorize him to covenant on behalf of his principal to repair or rebuild a house thereon in case of its injury or destruction by fire. In Loftin v. Crossland, 94 N.C. 76, it was held that a married woman, having appointed her husband to lease her land, was not bound by his attempt to subject the rents accruing therefrom to a lien for agricultural supplies advanced to the tenant. In Schumacher v. Brewing Co. (Minn.) 80 N.W. 838, derre v. Den (Cal.)

39 P. 946, it was held that an agent authorized to lease a tract of land for one year at $600 could not bind his principal by a lease of a part thereof at $225 for a term exceeding one year.

The letter which authorized the leasing of the premises not having been produced, the contents thereof were established by Adams, who, as defendant's witness, testified that he was thereby requested to rent the land for such a share of the crop as he might think proper, and to furnish money to buy grain to seed the place, if necessary, taking a mortgage on the crop to be grown thereon as security therefor. The authority conferred being evidenced by an informal writing which is not subject to a strict construction, the power to be implied therefrom ought not to be extended beyond the scope necessary to carry into effect that which is expressly granted. If it had appeared from the evidence that it was the well-known and general custom of landlords in the vicinity of the premises so leased to furnish to their tenants water for irrigation, so that the plaintiff, in dealing with Adams, might have reasonably inferred that he possessed plenary power to execute a lease with a covenant to that effect, the verdict of the jury, given in pursuance of proper instructions upon the subject, would have freed the inquiry from doubt ( Wright v. Solomon, 19 Cal. 64; Corbett v. Underwood, 83 Ill. 324; Randall v. Kehlor, 60 Me. 37; Rosenstock v. Tormey, 32 Md. 169; Mixer v. Coburn, 11 Metc. [Mass.] 559); for every contract is presumed to have been made with reference to the well-defined and publicly known customs and usages of the section of the country in which the terms of the agreement are to be performed, and these customs and usages, in the absence of anything to indicate a contrary intent, enter into and become a part of all contracts, though not particularly specified therein (Mechem, Ag. § 281; McCulsky v. Klosterman, 20 Or. 108, 25 P. 366, 10 L.R.A. 785; Holmes v. Whitaker, 23 Or. 319, 31 P. 705). In the absence of any proof of such general custom, if it had appeared from the testimony introduced at...