Heitmiller v. Prall

• Decision Date: 08 October 1919
• Docket Number: 15262.
• Parties: HEITMILLER et ux. v. PRALL et ux.
• Court: Washington Supreme Court

184 P. 334

108 Wash. 382

HEITMILLER et ux. v. PRALL et ux.

No. 15262.

Supreme Court of Washington

October 8, 1919

Department 2.

Appeal from Superior Court, Yakima County; Harcourt M. Taylor Judge.

Action by H. W. Heitmiller and wife against J. W. Prall and wife. From a judgment for plaintiffs, giving them insufficient relief, they appeal. Affirmed.

H. J Snively and I. J. Bounds, both of Yakima, for appellants.

E. M Heyburn, of Spokane, for respondents.

FULLERTON J.

On April 14, 1917, the respondents Prall were the owners of certain lands situated in Yakima county, and on that day leased the same for one year to the appellants Heitmiller. The land had upon it a matured orchard of about 12 acres, and the remainder of the land was suitable for growing grains and grasses for hay, and for growing garden vegetables. It is in the arid region, and irrigation is necessary to produce crops of any sort. The source of supply for water is an artesian well, situated on the premises, which flows during the winter season and spring, usually down to about the middle of May after which time it is necessary to raise the water by means of a pump. At the time of the lease there was no pump at the well, and the respondents agreed in the lease to 'pay the fair and actual cost of installing a pump and electric motor in the artesian well on the premises; * * * the cost of said pump and motor not to cost above $300.' As a consideration for the lease the appellants agreed to pay the maintenance cost of the pump and motor, properly spray, prune, irrigate, and care for the orchard, harvest and sell the fruit grown thereon, and pay to the respondents one-third of the gross amount received from such sale. Nothing is said in the lease concerning such other crops as might be grown on the land.

The appellants entered on the land under the terms of the lease, caused the orchard to be sprayed and pruned, planted to grain and vegetables certain portions of the land, and opened the irrigating ditches leading from the well to the parts of the land to be irrigated. The water flowed from the well until about the usual time, but the pump was not installed therein until some 36 days later. The crops were failures, no marketable fruits or vegetables maturing, and the hay crop was of no material value.

The appellants sought in this action to recover from the respondents damages in the sum of $6,476.46. They averred a breach of the contract to install the pump, and that the loss of the crops was the result of the breach. After issue joined the cause was tried to a jury, who returned both a general and a special verdict. In their special verdict they found that the respondents unreasonably delayed the installation of the pump, but further found that the delay was not the cause of the loss of the crops. By their general verdict they found in favor of the appellants in the sum of $1. The appellants moved for a new trial, basing the motion on the grounds of inadequacy of the verdict and errors occurring at the trial. The motion was overruled, and a judgment entered on the verdict. This appeal is prosecuted from the judgment so entered.

The assignment first discussed is the refusal of the court to grant a new trial on the ground of inadequacy of the verdict. It is asserted that there is abundant evidence in the record which would warrant the jury in finding that the loss of the fruit crop was due to the lack of water during the period intervening between the time the well ceased to flow and the time the pump was installed, and that there was no evidence to the contrary. On the first of these contentions we can agree with the appellants, but the second we think is not in accord with the record. It is needless to set forth the testimony, or review it at length, but plainly there was evidence from which the jury could well have found that the failure of the orchard crop, the only failure on which a recovery against the respondents could be based, was not due to a lack of water. The appellants had had no previous experience with irrigated orchards, and there was evidence tending to show that they did not commence irrigating as soon as they should have commenced; that they did not apply the water to the orchard to the extent they could or should have done after they did so commence; that the orchard had suffered from neglect in prior years, and required more than the usual care to make it produce marketable fruit; and that this care was not given it. While the evidence was conflicting, it was the province of the jury to say on which side the truth lay, a province with which the appellate court has no right to interfere.

It is next complained that the court erred in its instructions to the jury. The respondents, after putting in issue the appellants' allegations to the effect that they had tended and cared for the orchard in a proper manner, set up affirmatively such want of care, and that such want of care caused a loss to them of their interest in the crop, to their substantial damage, and demanded judgment against the appellants for such damage. At the trial they offered no evidence as to the amount of the damage suffered by them, and the court withdrew the affirmative defense from the consideration of the jury by the following charge:

'The defendants claim that the plaintiffs failed to properly spray, prune, irrigate, and care for the fruit trees, in consequence of which they have become infected and dried up for want of water, so that all were stunted and injured, and some perished, causing a loss

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