Wyoming Central Irrigation Co. v. Laporte

• Decision Date: 21 July 1919
• Docket Number: 878
• Citation: 182 P. 485,26 Wyo. 249
• Parties: WYOMING CENTRAL IRRIGATION CO. v. LAPORTE
• Court: Wyoming Supreme Court

182 P. 485

26 Wyo. 249

WYOMING CENTRAL IRRIGATION CO. v. LAPORTE

No. 878

Supreme Court of Wyoming

July 21, 1919

ERROR to District Court, Natrona County, HON. WILLIAM C. MENTZER Judge.

Action by the Wyoming Central Irrigation Co. against Nina A. Laporte to recover upon a contract for the delivery of water for irrigation, and the foreclosure of the contract. There was a judgment for defendant on a counter-claim and plaintiff brings error.

Judgment modified and remanded.

Edward H. Stearns and P. B. Coolidge for plaintiff in error.

Defendant's cross-petition fails to state facts sufficient to constitute a cause of action.

The written contract set forth controls its effect as a legal conclusion (Patrick v. Smelting Co., 38 P. 236; Hanover Co. v. Wilson, 143 P. 345). A condition precedent is determined from the intention of the parties (Frank v. Stratford-Hancock, 13 Wyo. 37; 77 P. 134; 39 Cyc. 1620). Payment of the first installment was a condition precedent to the use of water, and performance must be completed; the rule applies to a counter-claim (Hedstrom v. Baker, 13 Ill.App. 104). If waiver is relied upon it must be pleaded (Ins. Co. v. N. Y., 111 P. 507; Cement Co. v. Ulman, 140 S.W. 610). Failure to state facts sufficient to constitute a cause of action is never waived (31 Cyc. 608; Reed v Browning, 30 N.E. 704; Grover Co. v. Ditch Co., 21 Wyo. 204; 131 P. 43). The evidence is insufficient to establish a cause of action against plaintiff, the first installment of contract not being paid (Johnson v Tyng, 37 N.Y.S. 516; Omaha Water Co. v. Omaha, 156 F. 922; Godchaux v. Lumber Co., 59 So. 33). The Court erred in refusing an instruction as to the effect of failure to perform. The cross-petition fails to state a breach of contract; this is a fatal defect (Canal Co. v. Peters, 46 P. 74). There is a lack of allegation and of proof to show a breach of contract by plaintiff; the evidence shows that more water was used on the land than the contract called for; damages for failure to furnish water are unsupported by evidence (Crow v. Irr. Co., 62 P. 562). Objections to the reading of the deposition of Richards should have been sustained; the statute requires depositions to be filed at least one day before the trial, thus affording an opportunity to file written objections thereto (4579-4584 C. S.); plaintiff was entitled to an objection that deposing witness was no longer absent from the county (4578 C. S.; Sells v. Haggard, 21 Neb. 357, 32 N.W. 66, 13 Cyc. 988; Mo. R. R. Co. v. Elliott, 51 S.W. 1067). The court erred in permitting the admission of conclusions of the witness Richards as to who was responsible for lack of water (Modern Laws Ev. 1719; Chamberlayne 2349). There was no evidence that diversion of water by lesses of plaintiff in error during the season of 1908 was with its sanction. Instruction No. 8, given by the Court, is not in accord with the evidence. There was insufficient evidence upon which to predicate damages, if damages were sustained by the defendant in error, and the burden of proof was upon her. (Howard v. Brown, 148 N.W. 987.) The Court erred in refusing to submit special findings requested by plaintiff (4511 C. S.; Burke v. McDonald, 33 P. 49). The Court erred in instructing the jury to compute interest on damages found for defendant on her cross-petition, which were unliquidated (Rawlins v. Murphy, 19 Wyo. 253, 22 Cyc. 1512; Terrea v. Chabot, 121 Cal. 233; 53 P. 689; Anderson v. Adams, 74 P. 215). The Court erred in permitting the witness Richards to testify as to the total damage alleged to have been sustained by defendant (Old v. Keener, 43 P. 127). The Court erred in permitting evidence to be introduced as to the cost of planting defendant's crop, and in permitting defendant to state conclusions as to matters of which she admitted she was unable to state the facts (3 Chamberlayne, Sec. 1818). It was error to permit a cross-examination of plaintiff's witness as to complaints by other persons of insufficient water. The court erred in refusing to strike answers from the testimony of Witness Leon Laporte. The Court erred in permitting expert testimony from persons not qualified as experts (B. & O. R. R. Co. v. Shultz, 1 N.E. 331). The evidence clearly established a waiver of damages long prior to commencement of the suit.

J. J. Spriggs, for defendant in error.

Plaintiff admitted its obligation to furnish water under the contract in the year 1907, and having failed to do so, was liable in damage (Wyo. Cent. Irr. Co. v. Burroughs (Wyo.), 115 P. 434). It cannot change front on appeal (Farmer Bank v. Zokk (Mo.), 113 S.W. 678); while there was a conflict in the evidence on the question of damages, there was evidence to support the verdict and it will not be disturbed on appeal. (Madill Co. v. Davidson, 157 P. 354; Cassady v. Stuart, 161 P. 1026; Eoff v. Alexander, 161 P. 807; Tucker v. Railway Co. 161 P. 1147; Husband v. Hussey, 161 P. 1170.) An allegation that the complaining party has performed all conditions of the contract is a sufficient allegation of performance of conditions precedent. (4411 C. S.) The answer set forth a statement of defects in ordinary and concise language which was all that was required (4389-4390 C. S.). Pleadings are to be liberally construed (4416 C. S.) and immaterial defects disregarded (4438 C. S.). Courts will give sufficient contracts as the one here involved reasonable construction. (Melco v. Ins. Co., 59 Washington 681; 106 P. 194, 28 L. R. A. N. S. 593.) Defendant is entitled to interest, since her damages are easily computed. The appeal should be dismissed, since there was no motion for a new trial, as to the judgment complained of (Mill Co. v. Keith Co., 156 P. 943). The record on appeal was not certified as required by law (Campbell v. Bank, 158 P. 267).

BEARD, CHIEF JUSTICE. POTTER and BLYDENBURGH, JJ., concur.

OPINION

BEARD, CHIEF JUSTICE.

This suit was commenced in the district court of Fremont county by the plaintiff in error against the defendant in error to recover the amount alleged to be due on a certain written contract for water rights for certain lands of defendant situated in said county, and for the foreclosure of said contract. The defendant filed a cross-petition or counter-claim claiming damages for alleged failures of plaintiff to furnish defendant with sufficient water, as required by the contract, during the years 1907 and 1908. Plaintiff applied for a change of judge, and Hon. William C. Mentzer, Judge of the First Judicial District, was called to try the case; and on plaintiff's application the place of trial was changed to Natrona county. Trial was had to a jury, resulting in a verdict and judgment in favor of defendant and against plaintiff for $ 6,885.25 and costs; from which judgment plaintiff brings the cause here on error.

By the terms of the contract upon which suit was brought, the plaintiff agreed to sell to the defendant "four perpetual water rights, to have the use of the waters flowing through that portion of its irrigation system constructed, or to be constructed, for the irrigation of the lands herein described, each water right representing and being the perpetual right to the use of one-half cubic foot of water per second of time, during the irrigation period of each year, the delivery and measurement of said water from the canal of said party of the first part (plaintiff) and its lateral ditches to be made by and in such manner as the said party of the first part may from time to time deem and determine for the best interests of both of said parties to this agreement and all others who hold like rights under similar agreements. This agreement for the sale of said water rights is hereby made subject to and under the express terms and conditions hereinafter set forth, to all and every one of which said terms and conditions the party of the second part (defendant), for herself, her heirs, and assigns, expressly consents and agrees: 1. The said party of the first part, its successors and assigns, is to furnish and deliver, at the point of delivery determined upon by said party of the first part, which said point is not to be more than three (3) miles from the lands hereinafter described, the amount of water, in said water right provided for, to the said party of the second part, her heirs and assigns, continuously, during the irrigation season of each year, except as hereinafter provided, and at no other time. 2. The said water shall be delivered by the said party of the first part, its successors or assigns, to said party of the second part, her heirs or assigns, from one of its main canals, subsidiary canals or lateral ditches, and the manner of withdrawing, distributing and regulating the supply of water from said system of irrigation works shall be prescribed, and its system maintained and operated, by the said party of the first part, its successors or assigns, in accordance with such rules as its Board of Trustees shall from time to time determine. 3. Said water shall be used for domestic and irrigation purposes only and only upon the piece or parcel of land, situate, lying and being in the County of Fremont, State of Wyoming, and more particularly known and described as follows, to-wit: North East Quarter of South East Quarter of Section thirty-four; North half of Southwest Quarter and Northwest Quarter of South East Quarter of Section Thirty-five, all in Township One North of Range Four, East of Wind River Meridian, containing one hundred and sixty acres."

The consideration to be paid for each of said water rights was $ 1,000.00, payable in installments. The first payment on each right to be $ 200.00, and the balance to be paid in five annual payments thereafter, of $ 160.00 each. The time for making the first payment,...