Wintle v. Utah-Idaho Sugar Co.
| Decision Date | 31 December 1928 |
| Docket Number | 4613 |
| Citation | 273 P. 312,73 Utah 215 |
| Court | Utah Supreme Court |
| Parties | WINTLE v. UTAH-IDAHO SUGAR CO |
Appeal from District Court, First District, Box Elder County; M. C Harris, Judge.
Action by George B. Wintle against the Utah-Idaho Sugar Company. Judgment for defendant, and plaintiff appeals.
REVERSED AND REMANDED, with directions to grant new trial.
Le Roy B. Young, of Ogden, for appellant.
Richard W. Young, of Salt Lake City, for respondent.
This case was argued and submitted at the October term, 1927. An opinion was rendered reversing the judgment on March 22, 1928; STRAUP, J., dissenting. Thereafter, in September, a rehearing was granted. The case was again argued and submitted on October 8, 1928. We have re-examined the record. Also the briefs originally filed as well as additional briefs filed on the rehearing. From such examination a majority of the court is still of the opinion that the rights of the defendant to defeat the claim of plaintiff's assignor must be measured by the damage sustained, if any, by the defendant occasioned by the breach of the contract on the part of plaintiff's assignor. We therefore adhere to our former holding, and now publish the original opinion which will stand as the opinion of the court in the case, STRAUP, J., dissenting.
In this case the complaint sets forth fourteen independent causes of action separately stated. Plaintiff brings the suit in his own right and as assignee of thirteen others claiming rights similar to his own. The several causes of action are founded upon like facts. The parties stipulated the facts as to the fifth cause of action, and the matter was determined upon such stipulation. It was understood that the court should retain jurisdiction of the other causes of action stated in the complaint until the rights of the parties are finally determined under the stipulation made. The court rendered judgment in favor of the defendant. This appeal is from that judgment.
Judgment in this case relates only to the fifth cause of action. The complaint as to that cause of action alleges that in the year 1921 the owner of the claim set forth therein sold and delivered sugar beets to the defendant (respondent), and that the amount claimed remains due and unpaid. The sugar company admits the sale and delivery of the beets, and that the amount claimed has not been paid. It justifies its nonpayment, as will later appear, and upon the grounds hereinafter set forth. The stipulation of facts recites that in the fall of 1921 plaintiff's assignor sold and delivered to the defendant company certain sugar beets pursuant to the terms and stipulations of a certain contract, which contract, among other things, contained the following provision:
"Any advances made to the grower [plaintiff's assignor] by the sugar company the grower agrees to repay and the repayment thereof shall be deemed secured by a first lien on the crop of beets above referred to; and the sugar company shall have the right to deduct any amount owing to it by the grower from whatever may be due the grower for beets delivered."
It is further stipulated that in the fall of 1921 there became due to plaintiff's assignor from the defendant for beets delivered the sum of $ 67.20, and that the defendant refused to pay the same, but applied the amount due upon an account claimed by the defendant to be owing to it from the grower for the lease value of certain water used by him upon lands not included within the description of the premises described in the deed, under and by which he claimed the right to use the water. It is stipulated that on the 24th day of March, 1921, a written contract was entered into between plaintiff's assignor and the Hammond Canal Company whereby the canal company, "subject to the terms and conditions herein set forth and mentioned, agrees to convey through its canals and laterals water for the irrigation of, and for culinary and domestic consumption on the following described tracts of land situated in the county of Box Elder, State of Utah, to wit," etc. Here follows a description by metes and bounds of the lands for which water was agreed to be furnished. The combined area of the two pieces described is 30.66 acres. The contract further provides that the parties thereto "will faithfully observe and be bound by all and singular the terms, conditions and covenants hereof and of that certain resolution of the Board of Directors of said company respecting the sale of water-rights, duly passed on the 19th day of April, 1920, and recorded on the 1st day of May, 1920, at page 338 of book H of Water of the records of said County of Box Elder, which said resolution is hereby referred to and in all respects made a part of this contract." On the same day, and as a part of the same transaction, the Hammond Canal Company, as grantor, conveyed a perpetual right to plaintiff's assignor "to receive from the canals of the said grantor water for irrigation, culinary and domestic uses on the following described tract of land situate in Box Elder County, Utah." Then follows a description of the same premises mentioned in the contract.
Following the description of the premises, the deed recites:
"The right hereby conveyed is clear and unincumbered by any act done or suffered by the said grantor or its predecessors in interest and is subject to the annual rental therefor, and to all and singular the rules, regulations, limitations, covenants and agreements of the said contract, which are hereby referred to and made a part of this deed."
In the resolution of the board of directors of the canal company, referred to in the contract dated March 24, 1921, and made a part of that contract, it is, among other things, provided as follows:
It will thus be seen that, by the terms of the water contract, not only the provisions of that contract but of the deed made in pursuance thereof, and the resolution of the board of directors of the canal company, all enter into and constitute the contract between the parties. We have copied only such parts of the contract, deed, and resolutions as in our judgment, considered in connection with the stipulations made by the parties hereinafter to be noted, are necessary to consider in determining the questions presented by this appeal.
It is stipulated that the Hammond Canal Company is a corporation and "is now existing for the purpose of owning controlling, acquiring, holding and distributing by sale or by lease to the said Le Grand Hunsaker [plaintiff's assignor in the fifth cause of action] and others who contract with it water from the natural flow of Bear River and storage water in Bear Lake for irrigational and culinary purposes upon the lands described in the contracts made, or to be made and entered into between said corporation and the various purchasers or lessors of such water; * * * that the water so contracted to be supplied to the said Le Grand Hunsaker under the terms, stipulations and conditions of said Exhibits A and B [contract and deed] was and is carried through the canals and laterals belonging to and owned by the said Hammond Canal Company and was and is delivered to the said Le Grand Hunsaker for use upon said described lands at appropriate headgates in said canal system; that the...
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