Sommerville v. Idaho Irr. Co., Ltd.

• Decision Date: 26 March 1912
• Citation: 123 P. 302,21 Idaho 546
• Parties: DORA SOMMERVILLE, Appellant, v. IDAHO IRRIGATION CO., LTD., a Corporation, Respondent
• Court: Idaho Supreme Court

123 P. 302

21 Idaho 546

DORA SOMMERVILLE, Appellant, v. IDAHO IRRIGATION CO., LTD., a Corporation, Respondent

Supreme Court of Idaho

March 26, 1912

CAREY ACT-CONSTRUCTION OF IRRIGATION SYSTEM-CONSTRUCTION COMPANY-FAILURE TO FURNISH WATER - LIABILITY OF CONSTRUCTION COMPANY-MEASURE OF DAMAGES.

(Syllabus by the court.)

1. Held, under the allegations of the complaint that the only damage recoverable in this action is the first payment on the water right with interest thereon at the rate of seven per cent from the date of such payment.

2. Where an irrigation company enters into a contract with the state to construct an irrigation system under the Carey Act of Congress and the laws of the state, and procures the state to place certain land included within said irrigation system on the market, and a person makes a contract with the state for forty acres of such land and also makes a contract with the irrigation company for water for said land and makes a payment thereon, and thereafter the irrigation company changes its canals so that it is unable to furnish water for said tract of land, the correct measure of damages includes such damages as the purchaser has sustained by reason of expenses incurred, labor performed or any outlay of time which he has made under the contracts after the execution thereof, and which he has suffered by reason of the failure of the company to comply with the terms of the contract, and in addition thereto all payments on the land and water right with interest thereon.

3. Held, that all such damages are special damages and must be plead before a recovery can be had.

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.

Action to recover damages for failure to comply with a contract for the delivery of water for certain lands. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs in favor of respondent.

R. V Wilcox, and A. M. Bowen, for Appellant.

The company knew that the land was arid and desert, that it was in its natural state valueless, that water would reclaim it and give it a value. They knew and contemplated that if they complied with their contract, her land and rights would increase in market value.

It is not true that a person cannot recover for profits. We do not believe that the damages sought in this case are "profits," as that word is ordinarily used in the decisions and by text-writers, but, assuming that the damages asked for by us were profits, still they would be recoverable in law. (13 Cyc. 53; Wolcott v. Mount, 36 N.J.L 262, 13 Am. Rep. 438; Watson v. Brick Co., 3 Wash 283, 28 P. 527; Bryson v. McCone, 121 Cal. 153, 53 P. 637; Shoemaker v. Acker, 116 Cal. 239, 48 P. 62; Ark. Valley Town & Land Co. v. Lincoln, 56 Kan. 145, 42 P. 706; Wakeman v. Wheeler & W. Co., 101 N.Y. 205, 54 Am. Rep. 676, 4 N.E. 264.)

Where profits have been rejected as an element of damages, it is because they are uncertain and speculative. (Sutherland, Damages, 2d ed., sec. 868; Masterson v. Mayor, 7 Hill, 61, 42 Am. Dec. 38.)

In the case at bar, governed by the principle announced in Gagnon v. Molden, 15 Idaho 727, 99 P. 965, the measure of plaintiff's damage would be what it would cost her to make the water available upon her land, and she offered proof of this which the court refused.

Under the modern and best considered cases, the measure of the land owner's damage in such case would be the difference between the value of the land if the contract had been carried out and its value with the contract unfulfilled. (Belt v. Washington W. P. Co., 24 Wash. 387, 64 P. 525; Blagen v. Thompson, 23 Ore. 239, 31 P. 647, 18 L. R. A. 315.)

It must be admitted that the measure of damage adopted by the court in no wise afforded plaintiff compensation. There would be two ways of awarding her compensation: First, to give her what it would have cost her to comply with respondent's contract; and, second, to award her the market value of the thing contracted for. The first was not practicable and excessive, and consequently we were obliged to rely on the other, but the court refused both, which was error.

The damage claimed under either theory was general damage and recoverable under a general plea. (13 Cyc. 175, 176; Bussard & Robson v. Hibler, 42 Ore. 500, 71 P. 642; Salt River Canal Co. v. Hickey, 4 Ariz. 240, 36 P. 171; Treadwell v. Whittier, 80 Cal. 575, 13 Am. St. 175, 22 P. 266, 5 L. R. A. 498.)

N. M. Ruick, for Respondent.

"Special damages, which are the natural but not necessary result of the injury complained of, must be specifically alleged." (5 Ency. of Pl. & Pr. 719, 741; 13 Cyc. 176, 179, 184; Sutherland, Damages, sec. 419; Sedgwick, Measure of Damages, pp. 678, 680; Harron v. Wilson etc. Co., 4 Cal.App. 488, 88 P. 512; Mitchell v. Clark, 71 Cal. 163, 60 Am. Rep. 529, 11 P. 882.)

"Loss of profits constitutes special damages which cannot be recovered unless alleged in the petition." (Bradley v. Borin, 53 Kan. 628, 36 P. 977; Sutherland, Damages, secs. 420, 421.)

Aside from the question of plaintiff's failure to plead loss of profits, the profits sought in this case are not recoverable because they are speculative, remote and uncertain and not the natural and proximate consequence of the breach of contract. (5 Ency. of Pl. & Pr. 744; Hunt v. Water Co., 150 Cal. 51, 87 P. 1093, 7 L. R. A., N. S., 913; Sutherland, Damages, sec. 59; Choctaw etc. v. Jacobs, 15 Okla. 493, 82 P. 502; Dodds v. Hakes, 114 N.Y. 260, 21 N.E. 398; Jones v. Nathrop. Admx., etc., 7 Colo. 1. 1 P. 435; Kay v. Williams, 8 Ky. Law Rep. 434.)

A contemplated sale of the land which plaintiff may have hoped to effect was a collateral undertaking, having no reference to the subject matter of the contract. It was a matter not contemplated when the parties entered into the agreement, for a breach of which suit is brought, nor was it contemplated by the law under which the agreement was made. (Paola Gas Co. v. Paola Glass Co., 56 Kan. 614, 54 Am. St. 598, 44 P. 621; Central Coal & Coke Co. v. Hartman, 111 F. 96, 49 C. C. A. 244.)

S. H. Hays, Amicus Curiae.

Where a vendor without any want of good faith on his part is unable to give a vendee good title to the premises, and for that reason there is a breach of the contract, the vendee is not entitled to have damages for the loss of his bargain but is entitled to have his money back with interest. (Maupin, Marketable Title, secs. 91, 164; Sutherland, Damages, sec. 593.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an action to recover damages for an alleged breach of contract on the part of defendant, a Carey Act irrigation construction company, in failing to make available and to deliver water for the irrigation of land entered by the plaintiff under the provisions of the Carey Act and state laws in regard thereto.

The defendant corporation, which is respondent here, admitted upon the trial that it was impracticable to irrigate plaintiff's land from its irrigation system, and the trial resulted in an instructed verdict for the appellant in the sum of $ 144.15, which amount was the first payment made on her water right to the irrigation company, with interest thereon. The plaintiff, not being satisfied with the amount recovered, applied for a new trial, which was denied, and this appeal is from the judgment and the order denying a new trial.

It is conceded that the only question involved is as to the measure of damages, the respondent contending that the true measure of damages is the amount of the payment made on her water right with interest from the date of the payment, and the appellant contending that the true measure of damages is the value of the land with the water right less the amount to be paid the irrigation company for the water right, which was $ 35 per acre. The irrigation company also contends that only general damages are alleged in the complaint, and that the advance in the price of the land by reason of having a water right in connection therewith is special damages, and cannot be recovered, as no special damages are alleged in the complaint.

The contractual relation between the parties to this action is evidenced by two contracts, both of which have heretofore been construed by this court in the case of Hanes v. Idaho Irrigation Co., ante, p. 512, 122 P. 859, to which decision reference is hereby made, where many of the provisions of said contract are quoted, commented upon and construed, and in which it was held that the respondent, the construction company, was liable for damages if it failed to deliver water under the facts of that case.

We will first determine whether the value of the land less the cost of the water right may be recovered under the allegations of the complaint.

It is alleged that on the 21st of August, 1907, the defendant corporation entered into a contract with the state of Idaho for the construction of certain irrigation works in Lincoln county, for the irrigation and reclamation of a large tract of desert land of the public domain, including the land of the plaintiff, under the provisions of the act of Congress commonly known as the Carey Act, and the acts and the laws of the state of Idaho accepting and giving force to said Carey Act in this state; that on November 14, 1907, the plaintiff made application and entered under the provisions of said Carey Act and the laws of the state of Idaho relating thereto, into a contract with the state board of land commissioners of this state for the purchase of the southeast quarter of the northwest quarter of section 2, township 6 south, range 14 east, Boise Meridian, in Lincoln county; that she has been at all times since in the possession of and entitled to the...