Smith v. Hicks

• Decision Date: 02 September 1908
• Citation: 98 P. 138,14 N.M. 560,1908 -NMSC- 029
• Parties: SMITH v. HICKS.
• Court: New Mexico Supreme Court

98 P. 138

14 N.M. 560, 1908 -NMSC- 029

SMITH v. HICKS.

Supreme Court of New Mexico

September 2, 1908

Appeal from District Court, Chaves County; before Justice William H Pope.

Action by S. C. Smith against Darius Hicks. Judgment for plaintiff and defendant appeals. Affirmed.

This is a suit for damages brought by the appellee, S. C. Smith hereinafter called "plaintiff," against Darius Hicks, appellant, hereinafter called "defendant," upon special covenant in a lease to furnish water, which plaintiff alleges was broken by defendant. The complaint alleges that on March 13, 1906, the defendant leased to plaintiff a certain quarter section of land in Chaves county N. M., containing 160 acres of land, for one year, and agreed to furnish water sufficient for the irrigation of the land leased from a certain artesian well to be sunk on a portion of the premises, in consideration of which the plaintiff was to prepare and seed said lands in certain crops, properly cultivate and irrigate said crops, and deliver to defendant the share falling to him at Dexter, N. M., and that plaintiff performed said contract on his part, but defendant failed to furnish the water as contracted for in the lease, and by reason of such failure the crop died, with the result that plaintiff was damaged in the sum of $1,000. To the complaint defendant directed a motion to strike out certain portions as legal conclusions and surplusage, which motion was overruled, and defendant answered. The defendant answered, denying all the material allegations contained in the complaint; denied that he failed and refused to furnish plaintiff with water with which to irrigate the crop; and alleges compliance with the terms of the lease contract; alleges that he caused to be brought in on June 9, 1906, an artesian well located on the northwest corner of the land described in the lease with water sufficient to irrigate the whole of said demised premises, and that plaintiff, being in full charge of said demised premises, negligently permitted and allowed the well to be locked up, and failed and refused to use the waters thereof to irrigate the crops; that plaintiff's failure and refusal to secure the water was not the fault or neglect of the defendant, but that at the time plaintiff and defendant entered into the lease the plaintiff had full knowledge that the water to be furnished with which to irrigate the crops was to come from the well then being bored, and that, in addition to the well furnished by defendant, defendant notified plaintiff before and after the well was brought in not to allow the crop to die for lack of water, that defendant would pay extra for water from neighboring claims, and that plaintiff negligently and willfully abandoned the premises on June 15, 1906, and rented other lands and refused to cultivate the lands of the defendant, and failed to use the water furnished by the defendant from the artesian well. The defendant further alleged by way of counterclaim that plaintiff was indebted to him in the sum of $100 as stipulated damages provided for in the lease because of his alleged breach of contract. The plaintiff denied the new matter set up in the answer and reply. The cause was tried to a jury upon the issues thus made, which resulted in a verdict in favor of the plaintiff, and his damages were assessed in the sum of $362.50. Whereupon defendant filed a motion for a new trial, which was overruled, and he prosecutes this appeal.

Scott & Dunn, for appellant.

Patton & Gibbany, for appellee.

McFIE J.

The first error assigned is upon the overruling of defendant's motion in the lower court to strike out portions of the complaint as being redundant or legal conclusions. There was no error committed in the overruling of this motion. "But, even if the court had erred in overruling the motion, a reversal of the judgment would not follow. A party has no absolute right to have his adversaries' pleadings pruned to suit his fancy. A reviewing court will only interfere in such matters where it appears that the denial of a motion to correct a pleading was not only erroneous, but prejudicial to the substantial rights of the moving party. Lincoln Mortgage & Trust Co. v. Hutchins, 55 Neb. 158, 75 N.W. 538." In the case of Pfau, Treas., v. Ketchum, Attorney General, 148 Ind. 539, 47 N.E. 927, the Supreme Court of Indiana says "that this court has repeatedly held that the overruling by the court below of a motion to strike out a part of a pleading is not on appeal an available error here. The reason assigned for such decision is that, at most, it can but leave surplusage in the record, which does not vitiate that which is good." Hudelson v. First Nat. Bank, 56 Neb. 247, 76 N.W. 570; Coddington v. Canaday, 157 Ind. 243, 61 N.E. 567; Atchison Ry. Co. v. Marks, 11 Okl. 82, 65 P. 996. There is nothing disclosed by the record in this case to show that the defendant was prejudicially affected by the ruling so as to bring the case within the exception referred to in some of the cases above cited.

While there are several assignments of error, they all relate to the four remaining questions in this case, namely: (1) Did the defendant, Hicks, comply with his covenant in the lease, which is in the following language: "Party of the first part agrees to furnish water sufficient to irrigate land above described; said water to come from an artesian well located on land"? (2) Did the court submit to the jury in his charge the correct measure of damages? (3) Was error committed in the overruling of the demurrer of the evidence and refusal to give peremptory instructions? (4) Was error committed in overruling the motion for new trial? We will consider these questions in the above order.

Considering then, the first, it is found to be based upon two paragraphs of the court's charge, and the refusal of the court to give two instructions requested by the defendant in the court below. It became the duty of the court to charge the jury as to the meaning of the defendant's covenant in the lease, "Party of the first part agrees to furnish water sufficient to irrigate land above described; said water to come from an artesian well located on land." The undisputed facts are that at the time the lease was entered into March 13, 1906, work was progressing on the well by the contractor Fisher. The crops were planted, as agreed upon, in April, May, and the last about the 1st of June. The oats came up and grew to be from two to three inches high, alfalfa two to eight inches high, Indian corn three to four inches high. All of these crops dried up and died for want of water to irrigate them. The final flow of water was struck on the 9th day of June, and on the same day the contractor Fisher capped, put a chain and padlock on, and locked the well up so that Smith, the lessee, could not, and did not, get any water from the well. Smith was present when Fisher locked the well, and protested verbally, to the extent of saying that he would break the lock, but Fisher replied that he had to do so to get a settlement with Hicks, and, if he broke the lock, he would do it at his peril. There was some correspondence between Smith and Hicks, who had gone to Illinois some time before and was still there, in which Hicks told Smith to break the lock and take the water; Hicks claiming that he did not owe Fisher anything. Fisher gave Smith the key to unlock the well July 5th, and he then obtained water, and, while some of the maize he had planted then came up and continued to grow, it was too late to mature. The frost killed it, and it was worthless. The evidence tended to show that, although the crops were planted and became growing crops, they were total loss to the plaintiff, and that the failure of the defendant to furnish the water necessary as provided for in the lease was the cause of the loss. Upon this branch of the case the court charged the jury as follows: "The first question for you to determine upon going to your jury room is whether there has been a breach of the contract in the respect alleged; that is, whether or not the defendant failed to furnish water sufficient to irrigate the crops as provided by the lease here from the artesian well located upon the premises. The court instructs the jury that plaintiff by the terms of the written lease submitted in evidence was entitled to one-half of the hay and grain that might be produced on the west 80 acres, and to all of the hay and grain produced on the east 80 acres of the premises described in said lease and occupied by the plaintiff during the year 1906, and that by the terms of said lease, the defendant was bound to furnish sufficient water for the irrigation of the crops planted by the plaintiff on said leased premises, and if you find from the evidence, defendant failed to furnish water sufficient to irrigate the crops planted by the plaintiff, and that plaintiff lost his crops on said premises by reason of the failure of the defendant to furnish water sufficient for the irrigation thereof, then and in case you so find, your finding should be for the plaintiff. The court instructs you that the term used in the lease, 'to furnish water sufficient to irrigate the land, said water to come from an artesian well located on the land,' means in law the duty was imposed by law on the defendant to deliver to the plaintiff, Smith, for the irrigation purposes of the premises occupied by him under the lease in evidence, a sufficient water source from which to irrigate said land. It does not impose the duty upon the defendant of being constantly in attendance for the purpose of seeing that this water was conveyed upon the premises, nor did it impose upon the defendant the duty of protecting the well from trespassers after the same had been completed and...