More v. Elmore County Irrigation Co.

• Decision Date: 20 December 1893
• Citation: 35 P. 171,3 Idaho 729
• Parties: MORE v. ELMORE COUNTY IRRIGATION COMPANY
• Court: Idaho Supreme Court

35 P. 171

3 Idaho 729

MORE v. ELMORE COUNTY IRRIGATION COMPANY

Supreme Court of Idaho

December 20, 1893

PRACTICE-CONTRACT HOW PLEADED.-A contract may be declared in haec verba or according to its legal effect. When the former mode is adopted, the instrument incorporated into the complaint must show upon its face in direct terms, and not by implication all the facts which the pleader would have to allege had he elected to set it forth by averment.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

Reversed and remanded; costs awarded to appellant.

E. M Wolfe, for Appellant.

The instrument sued on is not a contract between the plaintiff and defendant. No mutuality of obligation. There is no obligation assumed on the part of plaintiff. (Joseph v. Holt, 37 Cal. 255.) There must be mutuality of agreement as to quantity and time. (Bailey v. Austrian, 19 Minn. 535; Tarbox v. Gotzian, 20 Minn. 139.) The instrument shows in itself there is no consideration to support a contract. Must allege authority in person signing for defendant to execute the contract and bind defendant. (Bliss v. Kaweah Canal etc. Co., 65 Cal. 502, 4 P. 507.)

D. T. Miller and Texas Angel, for Respondent.

If I sell my farm to another in consideration that he will give me other land in lieu thereof, and I give immediate possession of my farm, and the other party executes an agreement to give me possession and title to his land, I can compel him to do so, and I can compel him to perform every condition of the contract. One is a good consideration for the other. (3 Washburn on Real Property, 247-249.) "A purchaser of real estate cannot remain in possession of land under a contract of purchase and at the same time refuse to pay the stipulated price. So long as he remains in possession he waives all objections to defect in title or delay in completing it." (Rhorer v. Bila, 83 Cal. 55, 23 P. 274; Cooper v. Pena, 21 Cal. 412; Haynes v. White, 55 Cal. 39; Whittier v. Stege, 61 Cal. 241; Hicks v. Lovell, 64 Cal. 20, 49 Am. Rep. 679, 27 P. 942; Gates v. McLean, 70 Cal. 42, 11 P. 489; Hannan v. McNickle, 82 Cal. 122, 23 P. 271; Kirtz v. Peck, 113 N.Y. 231, 21 N.E. 130.)

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

Plaintiff commenced her action in the district court by filing complaint, of which the following is a copy:

"In the Fourth Judicial Court in and for Elmore County, of the State of Idaho.

"October Term, 1892.

MARY A. J. MORE, Plaintiff,

vs.

ELMORE COUNTY IRRIGATION COMPANY, Limited, a Corporation, Defendant.

"COMPLAINT.

"The plaintiff complains and alleges: 1. That defendant is a corporation organized and existing under the laws of the state of Illinois, and doing business as such corporation in Elmore county, Idaho, with principal place of business in Cook county, Illinois. 2. That this plaintiff, on the twenty-ninth day of April, 1892, owned and controlled, for her own use and benefit, certain water rights on the following described lands in Elmore county, to wit: The north half of the northwest quarter of section 24, and the southwest quarter of the northwest quarter of section 25; also, the south half of the southwest quarter of section 25--all in township 4 south, range 6 east, Boise meridian. 3. That defendant desiring to procure of this plaintiff a surrender of her said water rights, title, and interest therein, and to divert said water to defendant's use and benefit, and in consideration of this plaintiff surrendering to defendant her said right, this plaintiff and defendant entered into a certain written contract whereby said defendant agreed to furnish this plaintiff a perpetual water right to said premises, and especially without charge for the year 1892. A copy of said contract is hereto attached, and marked Exhibit 'A,' and made a part hereof. 4. That under and by virtue of said contract the said defendant appropriated said water of this plaintiff to its own use and benefit, but failed to supply this plaintiff with water in time and quantity as agreed, and her land, and crops growing thereon, were damaged by drought; and, by reason of said defendant's failure to supply plaintiff with water in time or by terms of said contract, plaintiff has been damaged in her lands and crops in the sum of nineteen hundred and seventy-five dollars ($ 1975.00). Wherefore plaintiff prays for judgment in the sum of nineteen hundred and seventy-five dollars ($ 1975.00), together with interest and costs of this action.

"WILL H. DIAL & D. T. MILLER,

"Attorneys for Plaintiff."

Duly verified September 10, 1892. Filed September 19, 1892.

"EXHIBIT 'A.'

"Mountain Home, Idaho, April 29, 1892.

"It is herein agreed, by and between the Elmore County Irrigation Company, Limited, and Mary A. J. More, in consideration of the surrender and assignment of all the water rights, and interests in water rights, held and owned by the said Mary A. J. More, in water rights to the following described land, to wit: The north half of the northwest quarter, section 24, and the southwest quarter of the northwest quarter of section 25; also, the south half of the southwest quarter of section 25--all in township 4 south, range 6 east, Boise meridian, in consideration of a perpetual water right from the said Elmore County Irrigation Company, Limited. It is further agreed the Elmore County Irrigation Company, Limited, will not charge said Mary A. J. More for use of water upon said land for the year 1892 A. D.

"ELMORE COUNTY IRRIGATION COMPANY, Lt'd.

"THOMAS J. FARREL,

"President.

"MARY A. J. MORE."

To this complaint, defendant demurred, generally, that complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled, answer filed, trial had before court with a jury, and verdict for plaintiff. From the judgment rendered on...