Farr v. Griffith

• Decision Date: 29 January 1894
• Citation: 35 P. 506,9 Utah 416
• Court: Utah Supreme Court
• Parties: JOHN FARR AND ANOTHER, RESPONDENTS, v. GEORGE G. GRIFFITH, APPELLANT

35 P. 506

9 Utah 416

JOHN FARR AND ANOTHER, RESPONDENTS, v. GEORGE G. GRIFFITH, APPELLANT

Supreme Court of Utah

January 29, 1894

APPEAL from a judgment of the district court of the fourth district and from an order refusing a new trial, Hon. John W Blackburn, judge. The opinion states the facts.

Affirmed.

Mr. E T. Hulaniski, for the appellant.

Messrs Kimball and Allison, for the respondents.

BARTCH, J. MINER, J., concurred.

OPINION

BARTCH, J.:

The defendant leased to the plaintiffs, for a period of four years from June 20, 1890, certain ice ponds and ice houses, for the purpose of putting up and storing ice, and granted them other privileges. He also agreed to supply the ponds with the usual water supply, during the ice making season of each year of the term, with such supply as the ponds had usually theretofore had. In consideration therefor the plaintiffs agreed to pay him $ 6,500.

The plaintiffs claim that during the season of 1891 and 1892 the defendant failed, neglected and refused to furnish the usual water supply for the ponds, and brought this suit to recover damages in the sum of $ 5,000 for breach of contract on the part of the defendant. The jury returned a verdict assessing plaintiff's damages at the sum of $ 1,000. The defendant's motion for a new trial having been denied, he appeals to this court, assigning, as error, insufficiency of the evidence to sustain or justify the verdict, and also certain rulings of the court in the trial of the cause.

Under the provisions of the lease it was the duty of the defendant to keep the ponds filled with water in the customary manner, that is, in the same way in which they were filled during the ice making seasons preceding the commencement of the term of the lease.

It appears from the evidence that it was customary, in the autumn of each year, to have the water flow into the ponds, and to keep them full until the weather became so cold as to prevent its flow by freezing, the water being carried by means of an open ditch. It also appears that when so filled there would remain sufficient water in the ponds, during the remainder of the season, to harvest and store the ice. The evidence, on the part of the plaintiffs, tends to show that during the season in question the water in the ponds was much lower than usual, some witnesses stating that it was from three to four feet lower; that this was caused through the neglect and failure of the defendant to fill them, in the usual way, before the cold weather set in; that a large portion of the ice which did form lay on the ground, in the bottom of the ponds, and could not be harvested; and that this occasioned a loss to the plaintiffs of more than two thousand tons of ice. On the part of the defendant the evidence tends to show that the ponds were filled in the manner usual in the previous seasons; that the water was little, if any, lower than in previous seasons; and that, if it was lower, it was not due to any fault, or neglect, or failure on the part of the defendant.

An examination of the record reveals a substantial conflict in the evidence, on the point of a breach of the contract, by the defendant. This question was properly submitted to the jury, and they found that a breach of contract was committed. Nothing in the record indicates that they acted from prejudice, partiality or corruption, and the court and jury, having had the witnesses before them, and having had an opportunity to observe their manner and bearing while testifying, are more able to judge of the weight which ought to be attached to their testimony than an appellate court, looking at the evidence only as it is written in the record.

The rule is well established that where, in a civil action, the evidence is...