Harrington v. Blohm

• Decision Date: 04 November 1918
• Docket Number: 222
• Citation: 206 S.W. 316,136 Ark. 231
• Parties: HARRINGTON v. BLOHM
• Court: Arkansas Supreme Court

206 S.W. 316

136 Ark. 231

HARRINGTON v. BLOHM

No. 222

Supreme Court of Arkansas

November 4, 1918

Appeal from Arkansas Circuit Court; Thos. C. Trimble, Judge affirmed.

Judgment affirmed.

John L Ingram, for appellant.

1. Appellant is not liable because the damages sued for are remote and speculative.

2. If appellee's theory as to damages is correct then appellant is protected against them by the contract. 1 Suth. on Dam. (3 Ed.) 140; 64 Ark. 510; 83 Id. 47; 122 Id 23; 96 Id. 78; Johnson v. Inman, 134 Ark. 345; 59 A. 31; 104 P. 930; 28 S.E. 106; 4 S.W. 687; 73 S.E. 70; 12 L.R.A. 125; 18 Tenn. 20, 23, 26; 12 L.R.A. 125.

Geo. C. Lewis, for appellee.

The damages are not remote or speculative and the contract does not protect appellant from liability. 94 Ark. 471; 93 Id. 501; 6 R. C. L. 836; 95 Ark. 114; 73 Id. 600; 67 Id. 156; 74 Id. 534; 13 C. J. 537; 134 Wis. 603; 97 Ark. 531; 122 Id. 23; 91 Id. 433; 80 Id. 228; 13 Cyc. 53; 78 Ark. 336; 71 Id. 408; 91 Id. 212; 56 Id. 612; 76 Id. 542; 89 Id. 518; 98 P. 138; 19 L.R.A. (N. S.) 938; 85 Ark. 111.

OPINION

SMITH, J.

This cause was tried in the court below on an agreed statement of facts, from which we copy the following controlling recitals: The parties litigant contracted in writing for the cultivation of seventy-five acres in rice, and pursuant to this contract "the plaintiff entered upon the land described in the contract and plowed and seeded seventy-five acres of said land to rice, and did other work in connection with growing a rice crop, all of a reasonable value of $ 375." That, in order to successfully raise a rice crop, it is necessary to drill a well and install a large amount of expensive machinery of sufficient capacity and power to keep the land sown in rice flooded with water all during the growing season, and this the defendant agreed to do; and that said pumping plant, in order to make a crop, should be equipped and ready for operation not later than June 1 of the crop year. That the defendant failed to install the pumping machinery on said land until in August of said year, and too late to bring to maturity the crops seeded on said land. That a fair average crop of rice which should have been and would have been grown on said seventy-five acres of land, if same had been properly irrigated, is fifty bushels per acre, or 3,750 bushels--such having been the average yield of neighboring farms for that season, and that one-half thereof would have belonged to the plaintiff. That the fair market value of said rice at maturity was and is $ 2 per bushel. That because of defendant's refusal to install a proper well and irrigating machinery by June 1, plaintiff was able to grow and mature only 150 bushels of rice. That rice growing is by far the most profitable agricultural industry in that part of Arkansas County, in which said land is situated, and that the prospect of growing a rice crop was the primary reason which induced plaintiff to enter into the lease contract in question; and that the growing of other crops was merely incidental. That in entering into said lease contract and expending his time, labor and money, in planting said crop, plaintiff relied upon defendant's agreement to install the necessary well and pumping machinery, and would not otherwise have entered into said lease or have attempted to grow said crop, and could not procure water elsewhere. That it would have cost plaintiff $ 850 to grow, harvest, thresh and market said crop, and that his net damage is $ 2,900. That the capacity of said well, when finally completed, was sufficient to irrigate the land sown in rice. That defendant contracted for a well and pump on said premises with the Layne & Bowler Company, on February 17, 1917. That said company is considered a reliable concern, and has put down most of the wells in the rice district of Arkansas County. That he contracted for a boiler and fixtures on March 24, 1917. That he had the engine when the lease contract was entered into, and that he used his best endeavors to get said well and machinery installed before June 1 of said year, and that the failure to do so was no fault of defendant.

Upon consideration of this testimony, the court rendered judgment for plaintiff for $ 2,690, being the amount sued for less an offset of $ 210, and this appeal has been duly prosecuted.

Appellant contends he is not liable in this case for two reasons. First, that, if appellee's theory as to said damages is correct, then appellant is protected against them by the contract. Second, because the damages sued for are remote and speculative.

The first defense is based upon the following clause of the contract: "Said first party (the defendant) shall furnish the well and machinery in good operating condition, and shall pay for the repair of parts which may be necessary on account of breakage, but second party shall otherwise keep the machinery in good and satisfactory repair. The first party is to be held in no way liable for the lack of water owing to accidents or deficiencies to the wells or other machinery, or for any other reason whatsoever." The contract is a lengthy one, and covers several pages of the brief, and other portions of it prescribe certain reciprocal duties in the way of furnishing wood and coal and oil and twine and other essentials, and provides for the employment of an engineer.

The contract does provide that "the first party is to be held in no way liable for the lack of water owing to accidents or deficiencies to the wells or other machinery, or for any other reason whatsoever." But we cannot agree with learned counsel for appellant that this language was intended or should be construed to exempt the appellant (the party of the first part) from liability for damages from any breach whatsoever of the contract. Such a construction of the contract would absolve appellant from any liability for failure to perform any of the obligations which he has assumed, and it is altogether unlikely that any such result was intended when we consider the large expense each party would necessarily have to make to perform his part of the contract. Each party to the contract must have assumed that the other intended to perform his part. And it is not likely that one of the parties, while binding himself, would at the same time and in consideration of reciprocal promises have released the other party from any binding obligation to perform such promises.

The rule of ejusdem generis applies to and limits the phrase "or for any other reason whatsoever" to the particular exemption from liability immediately preceding, so that the exemption sentence should be read as though written, "the first party is to be held in no way liable for lack of water owing to accidents or deficiencies to the wells or well machinery, or for any other like reasons whatsoever." State ex rel. v. K. C. & M. R. & B. Co., 106 Ark. 248, and cases there cited.

The reason of the rule is stated by the Supreme...