Singh v. Cross

This is an appeal from a judgment for four thousand dollars against the defendants P. B. Cross, Joseph Carlson, Alden Anderson, and Howard H. Payne in an action to recover damages alleged to have been caused to plaintiffs by reason of the breach by said defendants of an agreement for the leasing of certain lands in the county of Colusa, state of California.

The controversy arises over the construction of this lease, which covered a period of two years and in which plaintiffs were the lessees and appellants the lessors of a tract of land in Colusa County, California. The lessees agreed to pay a certain rental and to prepare the land for the planting of rice and to plant rice upon the same, and to do all irrigating, weeding, harvesting, sacking, threshing, and hauling of the rice. The lessor promised “to furnish water at his own cost and expense in an amount usual in said locality for maturing rice that may then be planted upon said premises, and agreed that said water shall be made available for use not later than the 25th day of April of each year of the term hereby created and to be furnished continuously during the season. In the event it is impracticable to commence the supply of water by the 25th day of April, 1918, then the lessee shall have the option of terminating this lease, and in the event that they exercise their option of so terminating the lease, they shall serve written notice upon the lessor notifying him of their election so to do. The lessor agrees thereupon to pay to the lessees the cost of the work already done by the lessees, and in addition thereto ten per cent of said cost, which the lessees agree to accept in full payment and satisfaction of all damages, demands and rights.”

The findings further recite that the plaintiffs were rice farmers of long experience; that in order to mature a rice crop upon said lands it was necessary that the same be supplied with an adequate amount of irrigation water in due and proper season; that on or about May 1, 1918, the plaintiffs demanded of said P. B. Cross, acting for himself and the said codefendants, a supply of irrigation waters to be delivered upon said lands, but at that time and at all times subsequent thereto, defendants failed and neglected to furnish a sufficient, adequate or any quantity of water for the purpose of irrigating said lands, except an amount to partially and inefficiently and inadequately supply about ten acres of said premises. That continuously, since about the first of May, 1918, to and including the fourth day of June, 1918, plaintiffs did from time to time demand of said defendants that they deliver to them to and upon said lands and premises a quantity of irrigation water sufficient to irrigate said lands so as to enable plaintiffs to grow and mature a crop of rice thereon; that from about May 1, 1918, plaintiffs demanded from time to time of defendants irrigation waters and defendants promised plaintiffs to deliver to them such waters according to the requirements of said lease, but at all times failed to do so in an adequate or in any quantity sufficient to mature a rice crop thereon; that at many times between the latter part of April, 1918, and the fifth day of June, 1918, plaintiffs demanded the receipt of irrigation waters upon said premises for said purposes

Plaintiffs then went to San Francisco and sought advice and on or about the eighth day of June, 1918, and through their attorney at San Francisco, plaintiffs executed and served upon said defendant P. B. Cross, acting for himself and as aforesaid, an additional and further notice in writing of the termination of said lease; that said notices were given in due season, and in time to permit a crop of rice to be thereafter grown on said land, provided water could be thereafter supplied thereto. The said notices of termination of said lease given by plaintiffs as aforesaid, to said defendant, P. B. Cross, acting for himself and as aforesaid, were so given and served within a reasonable time, and pursuant to the terms of said lease agreement. During all the times that plaintiffs were engaged in preparing said lands and doing the work aforesaid, and up to the fifth day of June, 1918, the said defendant, P. B. Cross, and the agents and employees of said defendants were in, on or about the said described premises.

Before considering the law applicable to the facts as found by the trial court and recited herein, it seems expedient to consider the objections of the appellant that some of these findings are not sustained by the evidence. Particular objection is made to the finding that the premises were ready for irrigation water “about the 1st day of May, 1918.” Appellants state in their brief that “the undisputed evidence is -that the land was not even then sown to rice.” In making this statement the appellants have overlooked the testimony of the plaintiff Chanan Singh, who stated several times that he had sown the rice the “first part of May.”

[1] Before considering the finding that the plaintiffs exercised, within a reasonable time, their right to terminate the lease, we shall discuss the objection of appellants that the lease did not give to plaintiffs a reasonable time within which to exercise such option. This question, appellants concede, is the main issue in the case. The lessor agreed that water would be “made available for use not later than the 25th day of April of each year for the term hereby created and to be furnished continuously during the season.” It was further agreed that “in the event that it is impracticable to commence the supply of water by the 25th of April, 1918, then the lessees shall have the option of terminating this lease.” No date is specified at which such option must be exercised. It is apparent that the right to exercise the option accrued to the plaintiffs on April 25th, Avhen the water was not furnished. No date being specified AAÚthin Avhich said option should be exercised, the plaintiffs Avould have a reasonable time within which to exercise the same. (Sec. 1657, Civ. Code.) Appellants also object to the finding that the option was exercised by the plaintiffs within a reasonable time. [2] The question as to what is a reasonable time for the performance of an act under a contract fixing no time for such performance depends upon the nature of the contract and the particular circumstances. It was a question of fact for the court in the present case. [3] The circumstance that the defendants continually promised plaintiffs that water Avould be furnished is material. Such promises would make it reasonable for the plaintiffs to wait, in good faith, from day to day. Furthermore, the defendants were not damaged by the delay. The court has found that the land was properly prepared and sowed Avith rice. The defendants were unable to furnish water until after June 1st. The land Avas valueless Avith

[4] Appellants contend that the trial court erred in considering evidence of work done upon the land after April 25th and up until the time of the notice of termination of the lease. Appellants’ position upon this question is that, regardless of what might be a reasonable time in which to exercise the option, under the terms of the lease, the obligation of the lessors was fixed and limited by the situation of the parties on the day the option accrued— April 25th. In other words, it is contended that the lessors were only obligated to pay for work done up to April 25th, and although the plaintiffs might have a reasonable time thereafter within which to exercise their option, they must discontinue work upon the land during that time, or do such work without hope of being compensated therefor, although defendants were requesting them to continue their work. It must be admitted that this question is one that is not free from difficulties, but we are of the opinion that, in regard to this matter, the contract is susceptible of the interpretation placed upon it by the trial court. It pro

[5] Appellants urge that the evidence does not show a waiver of written notice of termination and, therefore, the oral notification of June 4th was insufficient. Even though this be conceded, it would not avail appellants, for it was found that within four days thereafter, plaintiff served upon defendants a written notice of termination and it was found that this written notice was served within a reasonable time.

The testimony in the record to which appellants object on the ground that it varied by parol a written agreement was not admitted for that purpose. It was admissible for other reasons. Some of it was directed to ascertaining what was a reasonable time for the exercise of the option, an inquiry which was proper because no time was specified for this act. A large part of such testimony was also admissible upon the question of whether or not the provision for written notice had been waived. The trial court found that it had been waived. [6] Waiver may be shown by parol. Proof of express language is not necessary, but a waiver may be shown by circumstances or a course of acts or conduct. (Kn arston v. Manhattan L. Ins. Co., 124 Cal. 74 [ 56 Pac. 773 ]; Frank & Co. v. New Amsterdam Co., 175 Cal. 293 [ 165 Pac. 927 ]; Faris v. American Nat. Ins. Co., 44 Cal. App. 48 [ 185 Pac. 1035 ].) Appellants have discussed

[7] Appellants’ objection that the judgment should not include the price of the seed used on the land but merely the actual cost of labor performed is without merit. The portion of the contract under which recovery was had is: “The lessor agrees thereupon to pay to the lessees the cost of the work already done by the lessees, and in addition thereto ten per cent of said cost, which the lessees agree to accept in full payment and satisfaction of all damages, demands and rights.” “The cost of the work,” assuredly, includes the cost of all items which enter into such work. The board of the men doing the work, repairs to the machinery employed are all items that enter into the cost of the work (Betts v. Orton, 34 Cal. App. 397 [ 167 Pac. 1147 ]), and likewise, we think, the cost of the seed which was planted with the labor for which reimbursement was to be made.

The appellants’ contention that the rent should not be included in the judgment under the provision for repayment of cost of work presents a close question. But before discussing that phase of the case it seems pertinent to consider the validity of the entire clause upon which plaintiffs’ recovery was based, because a considerable portion of the appellants’ brief was devoted to that question.

[8] This action was brought to recover damages under the express provisions of the contract, by which the parties agreed that in the event of a breach by the lessors of their covenant to furnish water in time, they would pay to the lessees the cost of the work already done by the lessees and, in addition thereto, ten per cent of said cost, which the lessees agreed to accept in full payment and satisfaction of all damages, demands and rights. Appellants urge that this provision of the contract does not fall within the exception created by section 1671 of the Civil Code, permitting the parties to a contract to agree therein upon an amount which

It seems immaterial, therefore, whether the provision be sustained as one for liquidated damages or as a provision granting to the plaintiffs an option. The provision is one that will be enforced by the courts, the plaintiffs have relied upon it and have recovered thereunder.

[9] We shall now return to a consideration of appellants’ contention that the amount of the rent paid by the lessees should not have been recovered by them. Examining the entire contract to ascertain the intention of the parties and the construction put upon the words “cost of the work” by them, we find in paragraph 12 of the lease a provision that in the event the lessor makes a sale of the land before the rice has been planted thereon and after the land has been prepared or partially prepared for planting, the lessor will pay for the lessees “the cost of the work” in preparing said land. Could it be seriously contended that it was the intention of the parties that upon a sale of the land the rent paid in advance should be retained by the lessor? Would not the words “cost of work” be given a sufficiently liberal construction to include the rent? We think so, and we can see no reason why the same broad construction should not be given to the same expression in paragraph 18 of the lease. That the lessees were to lose the rent paid in advance, notwithstanding the fact that the cost of the work, plus ten per cent, was to be paid them upon breach of the contract by the lessor is so unthinkable, unreasonable, unjust, and inequitable, that no court would believe that such was the intent of the parties, and we are

It was said in Hayne v. San Francisco, 174 Cal., at page 189 [ 162 Pac. 627 ], in defining the phrase “cost and expenses,” and considering allowances made to owners of abutting property for damages caused by the construction of a tunnel: “We think the phrase should be given a broader meaning. The grant of power to cause the construction of the tunnel, of itself, implies a grant of sufficient incidental powers to accomplish that object. The constitution (sec. 14, art. I) requires the payment of all damages to abutting owners before such tunnel can be constructed. The payment thereof would be one of the necessary expenses of accomplishing the result desired. It is true it would not be a part of the expense of actual construction. The right thus paid for would not technically be a part of the material for the construction of the tunnel, but it is none the less an expense essential to such construction. The making of plans and surveys which precede the construction creates no material which goes into the work, but the cost thereof is uniformly understood to be an expense of the work. We think the payment of damages made imperative by the constitution is as much an expense or cost of the tunnel as the expense of preliminary surveys and plans, and that the charter gives the power to include it in the assessment.”

So, in the instant case, before any work could be done upon the land, the rent was a necessary cost to the lessees just as the preliminary surveys and plans for checking and leveling the land were necessary costs before a scraperful of dirt was moved. As was said in the ease of Hayne v. San Francisco, supra: “Bach ease must depend upon its own context and upon the object and purpose to be accomplished and the effect of the narrower or broader meaning upon such object, which considerations here point to the more liberal construction above stated.”

[10] Appellants contend that the judgment violates the stipulation of the parties as to the cost of preparing the land. The agreed price of preparing the land was $13 an acre. There were 160 acres, making a total of $2,080. The rental paid was $960. These sums, plus ten per cent, would make a possible total of $3,340. The judgment was for

The judgment is affirmed.

Nourse, J., and Sturtevant, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 26, 1923.

All the Justices present concurred.