Allen v. Los Molinos Land Co.

This is an action for damages under a written contract, made part of the complaint, whereby defendant was to sell and plaintiff was to buy certain 12.54 acres of land, and, among other agreements, plaintiff was entitled to receive from the Coneland Water Company, organized for the purpose of irrigating the lands of defendant and others, “one-fifth miner’s inches per acre, at such times and places and .subject to such rules and regulations” as may be prescribed by said Coneland Water Company, and for which water plaintiff was to pay two dollars per acre annually. Both said companies were under the management of one and the same person. It is alleged in the complaint that the irrigating season was by a rule of said Coneland Water Company declared to be from April 1st to October 31st of each year, and said rule was in force from and after April 1, 1912; “that one of the chief inducements of plaintiff to enter into said contract was the provision in said contract in respect to furnishing water for said land” (Par. V); that about March 18, 1912, plaintiff had all of his said land planted to potatoes; that said land was prepared for said planting in a farmerlike manner and agreeably to the custom of good husbandry, and that the soil of said land was suitable for raising large crops of potatoes with proper irrigation, and said contract provided for a supply of all the water necessary for the land for such purposes (Par. VI) ; that about April 15, 1912, “said potatoes so planted were growing nicely and gave promise of making a good crop, but from said date were in need of water for irrigation thereof. That between said date and the 18th day of May, 1912, the growth of said potatoes was arrested because of lack of water, and between said dates said potato crop was continuously in need of water for irrigation thereof.” (Par. VII); “that the defendant and said Coneland Water Com

The complaint and answer are verified. Defendant denied, on information and belief, the averments in paragraph V of the complaint; denied the averments of paragraph VI as to alleged proper planting and preparation of the land, but admits its suitability for growing potatoes and alleges that said land was not ready to receive water nor properly prepared prior to May 18, 1912. The averments of paragraphs VII and VIII are admitted by not denying them. Defendant denies the averments in paragraphs IX and X. The answer was verified by Thomas H. Means, the general manager of the companies.

The court found paragraphs I to IX, inclusive, of the complaint to be true and “That plaintiff was ready and his land was prepared to receive water earlier than May 18, 1912, and plaintiff was so ready and his land was so prepared in time to have prevented the loss of his crop, if water had been fur

Judgment accordingly passed for plaintiff for seven hundred dollars from which and from the order denying its motion for a new trial defendant appeals.

1. The findings as to the preparation of the land for planting ; that the land was ready to receive water earlier than May 18, 1912; that the growth of the potatoes was arrested by reason of the lack of water, and that when water finally was furnished it was too late to save the crop, are challenged as unsupported by sufficient evidence.

Plaintiff testified that the soil is rich loam well adapted to the growing of potatoes, which defendant admitted; that he prepared the land by deep plowing and sufficient harrowing agreeably to the requirements of good husbandry; that he bought his seed from Oregon of approved varieties, in good condition, and planted it in accordance with approved •methods of planting; that the seed came up and showed healthy and promising growth; that in due time he hoed and “hilled up” the earth against the vines in proper manner and kept the ground cultivated to retain moisture and promote further growth. He testified: “That spring was a very dry year, and there was a great lack of rain. There was a very long dry spell, at the end of which there was a very hot north wind, and after that there was a very heavy rain storm, after this dry spell, and which soaked the ground very thoroughly. This was May 19th. This was the day after the water was delivered.” He testified that he examined the vines at this time and “a second growth” appeared which he learned later had rendered the crop of no value. He testified that up to May 1st the potatoes seemed to be doing well, but the continued dry weather and lack of moisture which irrigation would have supplied was the apparent cause of the “set back” which the potatoes received. He testified that after -water was furnished there was no lack of moisture, but noth

2. The evidence was that under favorable conditions “it was a poor year for potatoes.” There was testimony that such land as plaintiff’s “ought to raise nothing less than 50 sacks per acre, and ought to bring as high up as 150 sacks.” Plaintiff in his testimony said that he “was figuring on 50 sacks to the acre of 120 pounds to a sack. ’ ’ He gave the market price of the two varieties he planted at the time they should have matured and have been ready for market, also the cost of producing and marketing the crop, or, as the court expressed it, the market value of the potatoes less “costs and expenses that would have been incurred in taking care of, harvesting and selling said crop.” With these facts before it, and the acreage planted, the court arrived at what we think was the correct measure of damages, to wit, the market value of the potatoes at the selling place, which the testimony showed was Red Bluff, less the expenses incurred in growing and marketing the crop. The action is for the breach of an obligation arising from contract, and the measure of damages “is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom.” (Civ. Code, sec. 3300.)

It is claimed that the finding as to the damages does not support the judgment, and properly construed means seven hundred dollars less one hundred and twenty-nine dollars, to wit, five hundred and seventy-one dollars, and not seven hundred dollars as entered in the judgment. The court found the cost of producing and marketing the crop “would have been the sum of $129.00, and that the net damage accruing to the plaintiff, to wit, the value of the crop that would have been produced less the said sum of $129.00 was as great as $700.00.” This is not a finding, as defendant contends, that the value of the crop was seven hundred dollars, but that its value was a sum equal to at least seven hundred dollars after

3. Error is claimed because plaintiff was permitted to testify that the agreement that water was to be furnished for irrigation was an inducement to purchase the land. One of the conditions of the contract of sale was that plaintiff should receive one-fifth miner’s inches of water per acre on said land. It was not varying the terms of the contract for plaintiff to say that this was an inducement. The contract itself said as much.

4. Plaintiff testified that he was familiar with the rules of the water company and knew there was a regulation that a water user desiring to irrigate should notify the company or its officers, in writing, three days in advance of the time water was needed. “Q. Did you make any demand in writing for the delivery to you of water? A. Not at that time. I was told it was not necessary. Q. When did you make any demand at all, either in writing, or otherwise? Mr. Johnson (plaintiff’s attorney): I object on the ground it is incompetent, irrelevant and immaterial. The pleadings admit that the company didn’t have the canals completed, and couldn’t deliver it (the water) before this particular time (May 18th). What is the use of making demand before they have their canals ready to deliver it? The Court: I will sustain the objection. You allege you were ready to deliver on the 18th of May, and the inference is that you couldn’t deliver it' before that.” The complaint distinctly alleged that the water company had not completed its canals and was not in condition to deliver water before that date which was admitted by not denying it: Objection to a similar question was later on sustained. After some further testimony was taken Mr. Wells, defendant’s attorney, asked leave to file the following amendment to- the answer: ‘ ‘ Furthermore answering the complaint of plaintiff, the defendant admits that the canals and ditches were not in perfect condition to deliver water, but , defendant alleges that it could and that it would have put the ditches into condition to furnish any and all of the water needed had demand been made for the same, and defendant alleges that plaintiff or any other person, did not make demand. Defend

The complaint alleges that by the rules of the water company the irrigating season began on April 1st and that the defendant was not prepared to deliver water to plaintiff until May 18th, and the evidence was that the damage became irreparable prior to.the latter date. There was no denial that the company was unable to furnish water sooner than May 18th; it was, therefore, immaterial whether or not a demand for water was made. Plaintiff was not called upon to perform the idle act of making a demand concededly impossible of being complied with.

In support of its offer to amend the answer and of its claim that the court erred in refusing to allow the amendment offered, many eases are cited in illustration of the meaning of section 473 of the Code of Civil Procedure, to the effect that amendments to pleadings are favored to enable a party to prove all the facts necessary to this cause of action or defense. (Crosby v. Clark, 132 Cal. 8 , [ 63 Pac. 1022 ], and San Francisco etc. Society v. Leonard, 17 Cal. App. 254 , [ 119 Pac. 405 ], are cited as distinctly so holding. The court is empowered to impose terms where a party is taken by surprise and may even continue the case. "While this is true, it is also ruled that the allowance or disallowance of an amendment in the midst of a trial is within the discretion of the trial court, and its ruling will not be disturbed unless such discretion has been abused. (Manila v. Union Fertilizer Co., 151 Cal. 581 , [ 91 Pac. 393 ]; Salmon v. Rathjens, 152 Cal. 290 , [ 92 Pac. 733 ].) The answer was verified by the superintendent of both companies and defendant is charged with knowledge of the averments of the complaint. The allegation that defendant had not so far completed its canals and ditches as to make it possible to furnish plaintiff’s- land with water earlier than May 18th, could not have escaped the notice of defendant or its attorney and hence defendant cannot complain that it was surprised. Presumably the averment was not denied because it could not be truthfully controverted, and plaintiff had a right so to assume the fact to be when he went to trial. The proposed amendment gives evidence of hasty preparation and fails fairly to present the issue that defendant was pre

5. Upon the motion for a new trial appellant submitted certain affidavits tending to show that at the time the answer was prepared Mr. Wells, appellant’s attorney, was afflicted with brain trouble of which he, some time after the trial, died. There were counter affidavits from which the inference was fairly deducible that Mr. Wells had not at the time suffered any perceptible diminution of his mental powers. The record bears evidence that Mr. Wells had his case well in hand, and the trial judge was in a position to observe his capacity intelligently to conduct the defense. We cannot see that the court erred in denying the motion on this ground.

Superintendent Means made affidavit in support of the motion that had plaintiff given notice under rule three of the

It is strongly urged that the mental condition of Mr. Wells was unknown to defendant and came to its knowledge only through the autopsy after his death whence, by a posteriori reasoning, his condition at the time of the trial is arrived at. It may be conceded that an incipient stage of brain lesion had developed, but there was evidence that Mr. Wells had returned from treatment at San Francisco, and had resumed work in his office, had, shortly before the trial, assisted in the trial of a case in court, attended to the business of a bank for which he was attorney, and otherwise exhibited his usual mental vigor. Had it clearly appeared without conflict that Mr. Wells was in fact incapable of framing the answer in this case or of conducting the defense and that these facts were unknown to defendant and could not with reasonable diligence have been known to it, a different situation would be presented. We are unable to discover that the trial court abused its discretion.

The judgment and order are affirmed.

. Hart, J., and Burnett, J., concurred.