Erp v. Raywood Canal & Milling Co.

• Decision Date: 14 June 1910
• Citation: 130 S.W. 897
• Court: Texas Court of Appeals
• Parties: ERP et al. v. RAYWOOD CANAL & MILLING CO.

130 S.W. 897

ERP et al. v. RAYWOOD CANAL & MILLING CO.

Court of Civil Appeals of Texas.

June 14, 1910.

Rehearing Denied October 5, 1910.

Appeal from District Court, Liberty County; L. B. Hightower, Judge.

Action by W. F. Erp and another against the Raywood Canal & Milling Company. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Marshall & Marshall and Louis & Masterson, for appellants. Stevens & Pickett, for appellee.

REESE, J.

This is an appeal from a judgment of the district court for the defendant in a suit instituted by W. F. Erp and W. E. Wright against the Raywood Canal & Milling Company to recover damages, laid at $9,160, occasioned by the failure of the canal company to furnish water for the rice crop of plaintiff for the year 1907, in accordance with their contract. Upon trial with the assistance of a jury, there was a verdict for defendant, and from the judgment, their motion for a new trial having been overruled, plaintiffs appeal.

It was alleged in the original petition that on February 10, 1907, plaintiffs, who were cultivating 350 acres of rice on defendant's canal, entered into a contract with R. E. Brooks, president of the canal company, by the terms of which the canal company contracted to furnish to plaintiffs sufficient water to make a full crop of rice on said 350 acres for the year 1907, for which it was agreed plaintiffs were to pay the canal company $7.50 per acre; that, relying upon said contract, plaintiffs planted the said 350 acres in rice, and carefully cultivated and harvested the same, but that the canal company failed and refused to comply with their said contract to furnish a full supply of water in consequence of which plaintiffs only made 2,570 sacks of rice; that, if the canal company had furnished water as agreed by it, they would have made 4,860 sacks of rice, the loss to them being 2,290 sacks of the market value of $9,160, for which they sue. Defendant denied the making of the verbal contract referred to, and set up that it had entered into a written contract with plaintiffs, a copy of which is attached to the petition, to which was signed the names of the Raywood Canal & Milling Company by R. E. Brooks, president, and plaintiffs Erp and Wright. This contract is very lengthy, containing many stipulations. The salient features material to be considered in the disposition of this appeal are that by it the canal company "agrees to furnish through its present canals a supply of water, which, together with the natural rainfall, will be sufficient to irrigate the land above described for the purpose of raising rice thereon, so that said land with such irrigation under proper cultivation will produce an average crop of five sacks of rice per acre for said season of 1907, exclusive of levees." The contract contains the further stipulation: "It is further understood that said first party does not bind itself to supply water for irrigating the above-described land which will enable the said land to produce more than five sacks per acre, exclusive of levees, on an average; but if the second party, after properly planting and cultivating said land in rice, and caring for the crop thereon, shall fail for lack of water to make an average of five sacks per acre, exclusive of levees, on said land, then the said first party shall be required to pay to the said second party an amount which, added to the second party's share of said rice crop raised by said second party, shall be equal to $4.00 per acre. The said sum of $4.00 per acre is expressly stipulated by both parties hereto as the highest amount in damages which the said first party shall be held to pay the second party in any event under this contract. It is fully understood by and between the parties hereto that the said sum of $4.00 per acre, as above set out, is the amount of stipulated damages which the said first party can be held to pay to the said second party, and that neither of the parties hereto would make this contract without such stipulation."

It was alleged that this contract was fully complied with, and that, in fact, plaintiffs made and harvested more than five sacks of rice per acre, and, in fact, made a full average crop. With regard to the alleged verbal contract, it was alleged that, if it be held that defendant was bound thereby, on account of drought and accident, the washing out of its canal, and other recited causes, beyond the control of defendant and for which it was not responsible, there was such a shortage of water supply that defendant could not have furnished to plaintiffs a sufficient quantity of water to enable them to make a full crop of rice without discriminating against other persons cultivating lands in rice along the canal and its laterals, and who were entitled to be supplied with water, and with whom defendant had contracts for water, or who had spoken to defendant with regard to such water supply and made demand therefor. It was alleged that plaintiffs got their full proportion of the reduced water supply, and, if defendant had made the verbal contract as alleged, it could not have furnished water in full accordance with the terms thereof as alleged by plaintiffs without discrimination against other persons having equal rights with plaintiffs to be supplied with water. To this answer plaintiffs replied, denying, under oath, the execution of the alleged written contract, alleging that it was executed under duress, and under protest, in that they had, relying upon the verbal contract, planted their rice crop, and, when it was in urgent need of water, defendant refused to supply the same unless the written contract was executed by them; that they had incurred large expenses in planting the crop, all of which would be a total loss without immediate supply of water; and that they were then forced, to save themselves from irreparable loss, to sign the written contract. Plaintiffs further pleaded, under oath, that the written contract was executed without consideration, in that they were to receive thereunder no benefit to which they were not fully entitled under the verbal contract which is insisted upon. Plaintiffs, pleading in the alternative if it be held that they were bound by the terms of the written contract, excepted to the provisions of the written contract limiting the amount of water to be furnished and the amount of damages for which defendant was to be liable as unreasonable and void on their face, and further excepted to those allegations of the answer wherein it was set up, as an excuse for failure to comply with the stipulations of the verbal contract, that defendant could not do so without discrimination against other persons entitled to be supplied with water equally with plaintiffs; further pleading in the alternative as to the written contract, if it should be held that it was binding on them, plaintiffs asserted what was alleged to be their rights thereunder. Other allegations of the pleadings on both sides, so far as material, will be referred to in passing upon the several assignments of error. We have made such statement as will show the main issues in the controversy.

From the several issues that were submitted to the jury, it cannot be determined from the verdict upon what theory of the evidence the jury acted in returning the verdict, which was a general one for the defendant. They may have found that the verbal contract was not made, as alleged, that the stipulation as to furnishing water sufficient only to enable plaintiffs to make five sacks of rice per acre was reasonable, from which finding it would have resulted that there had been no breach of the contract by defendant. On the contrary, the jury may have concluded that the verbal contract was made, as alleged, that the written contract was executed under duress, but that defendant could not have supplied plaintiffs with sufficient water to make a full crop of rice without discriminating against others, as alleged, and hence that defendant was excused from such performance. None of the assignments presents a question of the sufficiency of the evidence to support the verdict on any of the theories presented, but they present only questions as to rulings on exceptions, the charge of the court, charges requested and refused, and the admission and exclusion of evidence.

The first, sixth, and twenty-sixth assignments of error present the question as to whether, if the verbal contract of February 10th was executed, and furnished the basis of appellants' rights, appellee was excused from furnishing a full supply of water in accordance therewith by the facts alleged in its answer, that there was such a shortage in its water supply that it could not have complied with its contract to furnish appellants enough water to make a full crop without discriminating against others having equal rights to the water. This question is presented by assignments complaining of the action of the court in overruling special exceptions to that portion of the answer presenting this defense, of the charge of the court presenting this issue, and instructing them, in effect, that such facts would be a defense to the action upon the verbal contract alleged, and of the admission of evidence in support of this defense. Under these assignments appellants state the general proposition that these facts presented no excuse for failure to comply with the stipulations of the verbal contract, and constituted no defense to an action based thereon.

The question presented may be thus stated: When a corporation, created and organized for the purpose of constructing and operating canals for furnishing water for irrigation, has entered into a contract with a person entitled to such service to furnish him with a full supply of water to make a crop, is it a lawful excuse for its failure to do so that, on account of shortage in the supply of water "from drought, accident, or other cause," it cannot comply with its...