Fisk Min. & Mill. Co. v. Reed

• Decision Date: 07 December 1903
• Citation: 77 P. 240,32 Colo. 506
• Parties: FISK MIN. & MILL. CO. v. REED et al.
• Court: Colorado Supreme Court

77 P. 240

32 Colo. 506

FISK MIN. & MILL. CO. v. REED et al.

Supreme Court of Colorado

December 7, 1903

Appeal from District Court, Arapahoe County; Geo. W. Allen, Judge.

Action by Clinton Reed and others against the Fisk Mining & Milling Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Teller & Dorsey, for appellant.

L. M Goddard and Clinton Reed, for appellees.

GABBERT J.

The purpose of this action, commenced by appellees, as plaintiffs, against appellant, as defendant, was to recover from the latter its alleged proportionate share of the expenses incurred by plaintiffs in draining mines operated by the parties in severalty. From a judgment for plaintiffs for $27,000, the defendant appeals.

The cause of action was stated in two counts. The first counted upon a contract between the parties, and the second upon the statute relating to the drainage of contiguous mining properties. According to the averments of the first count, it appears that for the period of 27 months subsequent to July 23, 1891, the parties were severally engaged in the operation of contiguous mines having a common drainage or water level that, when the water was taken from neither, it would rise to a common level in each; that pumping the water from plaintiffs' mines drained the property of defendant; that plaintiffs, during the period mentioned, pumped the water from their mines, thereby draining the mine of defendant; and that the expense thus incurred by them was $2,000 per month. The complaint then charges, after alleging a demand upon the defendant about June 1, 1891, to pay its just and fair proportion of such expense; 'And the said defendant then and there, in consideration of the premises, and of the benefits accruing to it by reason of said drainage, and in consideration that it would be continued to drain said mine as they were doing, undertook and promised the plaintiffs that it would pay to the plaintiffs its just and proper proportion of said cost of drainage as aforesaid.' It is alleged that the just and fair proportion which the defendant should pay was the sum of $1,000 per month. To this complaint a general demurrer was interposed, which was overruled.

We shall first consider the questions raised on the demurrer to the first count. It is asserted that this count fails to state a cause of action for four reasons: (1) That the contract declared upon is so uncertain that it cannot be enforced; (2) that it does not appear from its terms that it was mutual; (3) no facts are stated from which it can be determined what would be a just and fair proportion for the defendant to pay; and (4) it is not charged that the expense of pumping was incurred at the request of the defendant.

1. A contract is not void for uncertainty, even though it does not enter into all the details with respect to its subject-matter, if, according to its terms, it is sufficiently definite so that it can be ascertained with a reasonable degree of certainty what the parties intended to agree to. Thus tested, the terms of the agreement with respect to each can be readily ascertained. In brief, the contract was to the effect that, in consideration of the plaintiffs' pumping the water from all the properties the defendant should pay them its proportion of the expense of such pumping. True, the parties did not agree in specific terms how many dollars each should contribute to the expense of drainage, nor what aliquot part of such expense each should bear, but they did agree how the sum which the defendant should pay should be determined; that is, that it 'would pay to the plaintiffs its just and proper proportion of said cost of drainage.' So that it only remains to determine from the contract, in connection with its subject-matter and the conditions under which the parties contracted, to ascertain for them, when a dispute has arisen, what would be a just and fair proportion of the expenses which the defendant should pay.

2. In order to enforce an unexecuted contract, mutuality is necessary, but this requisite does not apply to a contract which has been executed. As to an executory contract, want of mutuality or reciprocal obligations of the contracting parties would be a good defense in an action to enforce specific performance, or to recover damages for its breach; but when executed, and the action is for the purpose of enforcing the obligation arising from its execution, the want of its mutuality originally is immaterial. Frue v. Houghton, 6 Colo. 318; Wood v. Casserleigh 30 Colo. 287, 71 P. 360; Marie v. Garrison, 83 N.Y. 14; Crawford v. Avery, 35 Miss. 205. According to the complaint, the plaintiffs have performed for the defendant that which they agreed to do, and the latter must therefore pay the consideration agreed upon, irrespective of the question of whether or not either was originally bound by the terms of the contract, further than as conditions precedent which would entitle the one performing the acts agreed upon to a performance by the other of the obligation resulting from such performance.

3. It is argued by counsel for appellant that the averment in the complaint to the effect that the just and fair proportion of the amount which the defendant should pay is the sum of $1,000 per month is but a conclusion of the pleader, and that no facts are stated upon which such conclusion can be predicated. It appears from the complaint that the mines of the respective parties were drained by plaintiffs; that during this period both the plaintiffs and defendant were engaged in operating their respective properties; that the mines had a common drainage, so that draining one drained the other; that, if plaintiffs had not been engaged in working their properties, the defendant would have been compelled, in order to operate its property, to have pumped the water which the plaintiffs pumped; that the expense of drainage, all of which was borne by the plaintiffs, was the sum of $2,000 per month. These statements disclose what would be a just and fair proportion for the defendant to pay on account of such drainage. Both parties were equally benefited by having their mines drained, because they were thereby enabled to work their properties, and therefore the expense which the plaintiffs incurred on this account should be equally divided between the plaintiffs, on the one part, and the defendant, on the other.

4. There is no specific averment in the complaint that the pumping operations of plaintiffs were carried on at the request of the defendant, but the absence of this statement does not render the complaint obnoxious to the demurrer. The complaint avers that, about the time the defendant began to operate its mine, it promised and agreed with the plaintiffs that it would pay them its just and fair proportion of the expense of drainage, and that the plaintiffs, in consideration of such promise, did thereafter drain the mine of the defendant for a specific period. In such circumstances, the law implies a request, or, in other words, a promise to pay for services to be performed implies a request for their performance. 1 Parsons, Contracts, *474.

The issues made by the answer to the complaint were found in favor of the plaintiffs. From these findings it appears that the mines of the parties had a common drainage; that plaintiffs pumped the water from the property of the defendant from July 23, 1891, to October 23, 1893, and that the cost incurred by them in draining the several properties during this period was $2,000 per month; that defendant agreed to pay them what was fair on account of such expense; and that the fair proportion of this cost which defendant should pay was $1,000 per month. Counsel for appellant contend that the finding of the court that a contract was entered into between the parties is not justified, for various reasons, which, summarized, are to this effect: The testimony was insufficient to establish a contract; that the alleged promise on the part of defendant was so indefinite and uncertain as to be unenforceable; that such promise only related to subsequent pumping, or, if it was intended to embrace pumping previous to the time it was made, that there was no consideration for such promise, in so far as it embraced the latter; that defendant had no control over the pumping operations carried on by plaintiffs, and, in the absence of an agreement on their part to continue such operations for a specified time, the defendant was not bound by its promise; and that the promise attempted to be proved was not made by any one having authority to bind the defendant.

In order to determine these questions, a brief reference to the evidence bearing upon them is necessary. From the testimony of one of the plaintiffs, it appears that they commenced to operate their mines in the early part of 1891; that pumping the water from these mines drained the one subsequently operated by defendant, and that it commenced to operate this property below the water level in July, 1891; that about this time the witness informed the manager of the defendant company that plaintiffs, by operating their properties, were draining the water from the mine of defendant, and wanted the company to pay a part of the expense of drainage, and, in reply to the question as to what proportion, the witness stated: 'Whatever is fair. You have a great deal better mine than we have, and you ought to pay as much as I do, certainly.' The manager did not say whether any amount would be paid or not, but stated, in substance, that he had not heard from his company, although he had written them on the subject. The witness further stated that he subsequently talked with this manager several times on the subject of drainage, and, while he never promised positively...