Hanover Canal Company v. Wilson

• Decision Date: 10 October 1914
• Docket Number: 753. 764
• Citation: 143 P. 345,22 Wyo. 427
• Parties: HANOVER CANAL COMPANY ET AL. v. WILSON. WILSON v. HANOVER CANAL COMPANY ET AL
• Court: Wyoming Supreme Court

143 P. 345

22 Wyo. 427

HANOVER CANAL COMPANY ET AL. v. WILSON.

WILSON v. HANOVER CANAL COMPANY ET AL

No. 753. No. 764

Supreme Court of Wyoming

October 10, 1914

ERROR to the District Court, Big Horn County; HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Case remanded.

Charles H. Harkins and Lonabaugh & Wenzell, for the Hanover Canal Company and the State Bank of Chicago.

The rights and obligations of the parties became merged in the second contract, which superseded the first. As Wilson had been in default under the first contract, and had obtained an extension of time to make the deferred payments, there was ample consideration for his entering into the second contract and assuming the additional obligations thereof. Neither fraud, mistake nor undue influence was pleaded in the petition or proved at the trial and therefore the question of fraud does not rise in the case. By entering into the second contract the plaintiff waived any claim under the preceding contract, and neither party could thereafter maintain any action under it. (Housekeeping Pub. Co. v. Swift, 97 F. 290; Stow v. Russell, 36 Ill. 18; Chrisman v Hodges, 75 Mo. 413; Reed v. McGrew, 5 Ohio 375; Munford v. Wilson, 15 Mo. 540; Farrar v Toliver, 88 Ill. 408; Bascom v. Cannon, 27 A 968; Shepard v. Hamilton, 29 Barb. 156; Cocheco Bank v. Berry, 52 Me. 293; Caples v. Port Huron &c. Co., 131 S.W. 303; Welch v. Mischke, (Mo.) 136 S.W. 37).

By his written consent to the assignment of the contract to the bank Wilson became estopped as against the bank from claiming the damages sued for. (11 Ency. Law, 427-8). In passing on the sufficiency of a special verdict the court must treat material facts, established by the undisputed evidence, in the same manner and to the same extent as if they were formally incorporated into the verdict, or the court may incorporate them into the verdict by amendment. But such facts are a part of the verdict whether formally incorporated into it or not. (Murphy v. Weil, 61 N.W. 316). There seems to be no dispute between counsel as to this proposition. But counsel differ with reference to the "undisputed facts" concerning the damages for the year 1906. The fatal objection to the contention that the court could have assessed damages for the year 1906 according to the undisputed evidence shows that Wilson was not entitled to any damages for that year.

H. C. Brome, Thos. M. Hyde, and Chas. L. Brome, for Edward B. Wilson.

The jury found that Wilson was entitled to damages for the year 1906, and there was ample and undisputed evidence to sustain that finding. The jury evidently became confused in answering the numerous interrogatories, and it was competent for the court to correct and amend the answer to the interrogatory as to 1906 so as to conform to the proof, and it was error to set aside the finding as to the damages for that year. (38 Cyc. 1931; Noakes v. Morey, 30 Ind. 103; Conover v. Knight, 91 Wis. 569, 65 N.W. 371; McFitridge v. Ins. Co., 90 Wis. 138, 62 N.W. 938; Fish v. Ry. Co., 38 N.W. 132; Pickett v. Richet, 2 Bibb, 178; Farwell v. Warren, 76 Wis. 527, 45 N.W. 217; Murphy v. Weil, 89 Wis. 146, 61 N.W. 316).

In the argument of counsel for the canal company and the bank that the first contract is conclusively presumed to have merged in the second counsel loses sight of the facts pleaded and proved by Wilson for a basis of recovery upon the first, second and third causes of action. It was pleaded and proved that prior to the crop season in each of the years 1905, 1906 and 1907, the managing officer of the canal company represented to Wilson that the canal would be completed and water delivered to his land for irrigation, and that relying upon said representations he prepared his land for crops; that by reason of the failure to so deliver the water as represented he suffered the damages alleged. The first three causes of action upon which only damages were allowed were not actions upon the contract of April 9, 1904, but upon representations made by the authorized officers of the canal company, and were collateral to the contract. The evidence offered to prove these representations and these damages did not contradict the terms of the contract, nor attempt to vary its terms in any particular. Its effect, however, is to show that the collateral obligations were not a part of the negotiation in entering into the second contract. When damages have accrued through breach of a verbal contract, and there is no waiver or disclaimer of the breach in a subsequent writing, an action will lie on the verbal agreement notwithstanding such writing. (Luckey v. R. R. Co., 133 Mo.App. 589, 113 S.W. 703; Lawson on Contracts, Secs. 428, 429).

Merger is an operation of law which extinguishes a right by reason of its coinciding with another right of a greater legal worth in the same person. The doctrine of merger applies by mere operation of law independent of any intention of the parties, and without any express or implied agreement that the inferior remedy shall be extinguished. The requisites of a merger are that the two securities must be different in their legal operation, the one of higher efficacy than the other, and the two securities must be co-extensive, that is, the new and superior security must be for the same debt and between the same parties. (Ry. Co. v. Craycraft, 39 N.E. 523).

The elements of estoppel are not presented in this case. In order to constitute an estoppel, the representation must have been made with the intention that the other party should act thereon, and the other party must have been induced so to act. (Booth v. Lenox, 45 Fla. 191, 34 So. 556; Welty v. Vulgamore, 24 O. C. C. 572; Bruner v. Campbell, 90 Ill. 632; Rogers v. Ry. Co., 100 Me. 86, 60 A. 713, 70 L. R. A. 574; Inhabitants v. Inhabitants, 4 Mass. 180). In order to create an estoppel in pais, the party pleading it must have been misled to his injury in some substantial particular. (Appeal of Columbus &c. R. Co., 109 F. 177; Heinbucher v. Goff, 119 Ill.App. 373; Dudley v. Pigg, 149 Ind. 363, 48 N.E. 642; Meisel v. Wells, 107 Mich. 453, 65 N.W. 289; Gjerstadengen v. Hartzell, 9 N.D. 268, 83 N.W. 230, 81 Am. St. 575; McLemore v. R. R. Co., 111 Tenn. 639, 69 S.W. 338; Mining Co. v. Juab Co., 22 Utah 395, 62 P. 1024; Baltimore Dental Ass'n. v. Fuller, 101 Va. 627, 44 S.E. 771; Ashworth v. Trammell, 102 Va. 852, 47 S.E. 1011). The evidence shows conclusively that the trustee certified the bonds secured by the Wilson contracts upon the receipt of the first contract early in 1907, and thus did not rely upon the endorsement and acknowledgment of the contract of October, 1907. The second contract was substituted entirely at the instance of Wilson and the canal company, and the trustee was not in any manner prejudiced by that substitution.

SCOTT, CHIEF JUSTICE. POTTER, J., and BEARD, J., concur.

OPINION

SCOTT, CHIEF JUSTICE.

Both of these proceedings arise out of the same facts and upon the same record of the trial in the court below of the case of Edward B. Wilson, plaintiff, and the Hanover Canal Company and the State Bank of Chicago, as defendants. The action was instituted by Wilson to recover damages for the alleged failure of the canal company to complete its canal and furnish water to irrigate his land within the time agreed and stipulated by the company in its contract with him. The case was tried to a jury which returned answers to 20 interrogatories which were submitted to them. The court rendered judgment in favor of the plaintiff and against the defendants upon the special findings. Both plaintiff and each defendant made separate motions for a new trial which motions were severally overruled and the defendants and plaintiff each bring error. By stipulation the cases are consolidated and submitted on the same record.

It is admitted by the pleadings that the Hanover Canal Company is and was a corporation created, organized and existing under and by virtue of the laws of Wyoming and engaged in constructing an irrigating ditch known as the Hanover Canal taking its water by permit duly obtained from the State Engineer from the Big Horn River for the purpose of reclaiming lands lying under said ditch and being duly authorized under the law so to do and for the sale and delivery of the water so diverted by means of such canal free from all incumbrances together with all rights and franchises attached thereto to settlers occupying the land described in said permit, which permit included the northeast quarter of Section 31, Township 47 North, of Range 92 West in Big Horn County in the State of Wyoming and which was selected by plaintiff for the purpose of obtaining title to the same under the Carey Arid Land Act and which land had been theretofore segregated from the public domain and a water right for the same through and by means of said canal having been theretofore secured from the State Engineer, the plaintiff on April 9, 1904, entered into a written agreement with the Hanover Canal Company to purchase a water right for said land and to pay therefor the sum of three thousand and two hundred ($ 3,200) dollars as follows: $ 100 cash, $ 1100 on July 1, 1904; $ 400 on April 9, 1905; $ 400 on April 9 1906; $ 400 on April 9, 1907; $ 400 on April 9, 1908; $ 400 on April 9, 1909; with eight per cent. interest on said deferred payments according to the tenor of six notes of even date therewith. The canal company agreed in and by the contract in consideration of the money paid and notes executed and delivered that if it failed to have the canal completed to a point where the water could be diverted and applied to the irrigation of said land on or before June 1, 1905, to refund to plaintiff all money and interest paid...