South Tex. Water Co. v. Bieri

• Decision Date: 14 February 1952
• Docket Number: No. 12275,12275
• Citation: 247 S.W.2d 268
• Parties: SOUTH TEXAS WATER CO. v. BIERI.
• Court: Texas Court of Appeals

Page 268

247 S.W.2d 268

SOUTH TEXAS WATER CO. v. BIERI.

No. 12275.

Court of Civil Appeals of Texas, Galveston.

Feb. 14, 1952.

Rehearing Denied March 27, 1952.

J. E. Davant, of Bay City, Masterson & Pope, Masterson, Williams & Smith, Fred L. Williams, Jr., of Angleton, for appellant.

Rucks, Enlow & Kee, A. R. Rucks, Floyd Enlow, Leland B. Kee, of Angleton, for appellee.

MONTEITH, Chief Justice.

This action was brought by appellee, Ed Bieri, against Southern Warehouse Corporation and appellant, for the recovery of the sum of $11,557.32 alleged to have been appellee's share of the amount realized by the Warehouse Corporation from its sale, under appellee's authority, of the 1948 rice crop of appellee and his brother. Southern Warehouse Corporation, in its answer, alleged that it was merely a stakeholder and paid into the registry of the court the sum of $11,557.32. It filed a cross-action against appellant and appellee and prayed that it be discharged from liability to both. It impleaded The First National Bank of Angleton, alleging that it had delivered its check to the bank for $11,557.32 payable jointly to appellant and appellee, and asked that the check be cancelled. It prayed for reasonable attorney's fees. The First National Bank of Angleton answered that said check had been returned to the maker. It sought attorney's fees from the Warehouse Corporation.

In his answer appellee denied that he had made a contract with appellant to purchase water in 1948. He denied that appellant had furnished him with water in that year.

In a trial before a jury five special issues were submitted. The jury found, in answer to special issue No. 1 that appellant did not furnish appellee with water during the irrigation season of 1948. Under instructions from the court, the jury made no answers to the remaining issues submitted.

Appellee, Ed Bieri, owned and farmed several hundred acres of land in Brazoria County in the year 1948, bounded on the east by Flores Bayou, a public stream. He had constructed and maintained on his premises a reservoir of some 35 acres of land area. He had also drilled on his premises two deep wells and had installed pumps in Flores Bayou from which he irrigated his rice crop.

Appellant is an incorporated irrigation company. It maintains a system of canals, locks, pumps and ditches to the north of appellee's land. A ditch, commonly known as the 'Big Ditch', had been constructed and was maintained by a drainage district. It crossed a small portion of appellee's lands and emptied into Flores Bayou. Other man-made ditches were constructed and maintained by the drainage district.

A group of farmers, referred to as 'Bayou Farmers', farmed lands north and south of appellee's lands.

Appellant, South Texas Water Company, had a permit to appropriate some 40,000 acre feet of water to be used in irrigating approximately 20,000 acres of land within the year 1948. The permit provided for two acre feet of water to be used for each acre of land irrigated. It is generally recognized that two acre feet of water are required to properly irrigage an acre of land being farmed to rice.

Appellant alleges that it had contracted with several Bayou farmers, who were farming several thousand acres of land outside its permit area, to furnish them irrigation water during 1948. However, it did not obligate itself in writing to furnish this water under any definite arrangements though it asserted its right to collect the full amount of the usual water rental charge from them if it had any water available after supplying its contract consumers.

Appellant, South Texas Water Company, relies upon three theories for the recovery from appellee of the sum of $10,257.96. Its first theory of recovery is based upon an alleged oral contract with appellee similar to a contract between appellant and the Bayou farmers.

Appellant alleges that it had agreed to furnish water to the Bayou farmers for the 1948 season if such water was available from run-off or from its source of supply after it had furnished water under its existing contracts, and that the Bayou farmers had agreed to accept such arrangement and to pay appellant $12 per acre for each acre of land so irrigated and that the Bayou farmers, other than the appellee, had agreed to pay a part of the water rent of a non-co-operating Bayou farmer, one Novak.

Appellant relied alternately upon the doctrine of quantum meruit. It alleged that, at the request of appellee, it had furnished water for the irrigation of appellee's 1948 rice crop and that appellee had received and used such water for the irrigation of his crop. It sought the reasonable and customary charges for such water alleged to be $12 per acre for each acre thus irrigated.

Appellant also alleged alternately that it had delivered water into Flores and Austin Bayous for the use of a large number of farmers, including appellee, and that appellee, knowing such fact, had withdrawn and converted part of such water and had used it to irrigate his 1948 crop, and had become liable to appellant for such water and services, alleged to be $12 per acre for the full acreage farmed by appellee.

Appellant's president, Morris Savage, testified in substance that he had had a conversation with appellee with reference to the Irrigation Company furnishing him water for his 1948 crop; that they had had a deal with the Bayou farmers that they would furnish them with water for their 1948 crops if they, the Bayou farmers, would pay part of the water rent of one Novak, but that Mr. Bieri would not agree to pay any part of the Novak water rent, and that he had not mentioned to Mr. Bieri the amount of the water rent for 1948.

Appellee testified in substance that Mr. Savage had stated to him that he did not know that the company would have the water to spare, but that if they had some to spare they would let him have some and that he had stated to Mr. Savage, 'If you furnish me water, I will do the right thing about it.'

In its order overruling appellant's motion for an instructed verdict, the trial court held that the evidence, considered in the light most favorable to appellant, was insufficient to establish a binding contract by appellant to furnish water for the irrigation of appellee's rice crop for 1948.

Under its first four points of alleged error, appellant contends that the trial court erred in holding that the evidence was insufficient to raise an issue of fact for the jury as to whether appellant and appellee had made a contract for the 1948 irrigation season. It contended that the court erred in refusing to submit to the jury issues inquiring as to whether appellant and appellee made a water contract in the 1948 irrigation season, in failing to include in its charge issues presenting appellant's alternate defense of quantum meruit and in refusing to submit to the jury 14 issues requested by appellant which it contends present affirmatively the three theories which are made by its pleadings.

Appellant also complains of the action of the trial court in refusing to include in its charge to the jury definitions of direct and circumstantial evidence.

The finding on what we deem to be ample evidence that appellant did not furnish to appellee any water for his 1948 rice crop, we think, disposes also of appellant's defenses that appellee is indebted to it on the quantum meruit and conversion theories for water furnished and the failure to submit these issues would constitute harmless error.

In 10 Tex.Jur. 27, par. 13, it is stated that, 'To constitute a contract the minds of the parties must meet with respect to the subject matter of the agreement, and as to all of its essential terms; and all of them must assent to the same thing in the same sense at the same time. Their assent must comprehend the whole proposition, and the agreement must comprise all the terms which they intended to introduce into it.'

As to whether or not the trial court erred in holding that appellant's evidence was insufficient to raise an issue of fact as to whether appellant and appellee made a water contract for the 1948 irrigation season and whether the court erred in refusing to submit such issue to the jury, our courts have uniformly held that there is no contract unless the circumstances are such as to preclude one of the parties from denying that he agreed to the terms of the contract.

In the early case of Summers v. Robert Mills, 21 Tex. 77, 78, the Supreme Court of this State stated the rule to be that '* * * there is no contract unless the parties thereto assent, and they must assent to the same thing in the same sense.'

In the case of Greater Houston Suburban Corporation v. Dupuy & Mullen, Tex.Civ.App., 176 S.W. 668, the jury found that a contract existed. In reversing the trial court, the Court of Civil Appeals held that a consideration of the entire testimony led to the conclusion that the minds of the parties did not meet upon a material element necessary to constitute the contract and that there was no agreement between the parties.

The cases of Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 145 S.W.2d 569; La Fleaur v. Kinard, Tex.Civ.App., 161 S.W.2d 144, writ refused, W.O.M.; MacDonald v. Carlisle, 146 Tex. 206, 206 S.W.2d 224; Wedegartner v. Reichert, Tex.Civ.App., 218 S.W.2d 304, writ refused, N.R.E., are in accord with the...