Farren v. Willard

On the thirtieth day of January, 1920, the defendant entered into a contract with the plaintiff Western Well Works, Incorporated, whereby the plaintiff agreed to furnish certain pumps, motors, and equipment and the defendant agreed to pay therefor the sum specified in said contract. This action is for a balance alleged to be due on account of the unpaid portion of the purchase price of said equipment. The defendant, by cross-complaint, alleged damages for failure on the part of the plaintiff, Western Well Works, Incorporated, to furnish the pumps, motors, and equipment according to the terms of said contract, the damages sought to be recovered being damages alleged to have been suffered by reason of such delay on the part of said plaintiff in fulfilling its contract. Upon the conclusion of the testimony, the court granted a nonsuit as to defendant’s cross-complaint and directed judgment for the plaintiff for the unpaid portion of the amount agreed to be paid by the defendant for the pumps, motors, etc. From this judgment the defendant appeals.

It appears from the testimony in this case that preceding the execution of the contract between the said Western Well Works, Incorporated, and the defendant Willard, certain agents of said plaintiff called upon said Willard and

[1] It appears from the transcript that the defendant Willard had leased some two thousand five hundred acres of land to a tenant by the name of Marr to be seeded to rice; that all but two hundred acres of land were subject to irrigation by waters obtained from a canal company; that two hundred acres of the land in question were of such elevation that irrigation could not be had by water furnished through the canals of the irrigation district and therefore in the lease executed by the defendant to his tenant Marr there was inserted the following covenant: “It is further understood and agreed between the parties hereto that the party of the first part (the defendant herein) will at his own proper charge and expense drive down wells and install pumping plants or units in sufficient numbers with which to irrigate all that portion of land which lies above or is too high to be irrigated from the Main or Central canal, etc.” The lease in question also contained the following subdivision: “It being understood and agreed however, between the parties hereto that the party of the first part does not become the guarantor or the insurer that the whole or. any amount of said water shall be furnished at any time during the term of this lease, or any year thereof or that water will be furnished to said land that can be irrigated from said Main Canal, etc. ’ ’ Provision was further made in the lease for a rebate of rent upon failure of water furnished by the irrigation district through its canals. There does not appear in the lease any provision for rebate of rent on account of any failure of the lessor Willard to comply with his covenant. The lack of such a covenant, however, does not relieve him from the legal liability to perform his covenants as contained in the lease, and the argument to the contrary does not seem to us to require any consideration further than to state that performance within a reasonable time and at a time early enough to enable his tenant to use the water

[3] As a defense to this action on appeal, the respondent calls our attention to the responsibility clause printed in the contract and argues that the Western Well Works, Incorporated, incurred no responsibility by reason of its failure when ordering the machinery until seventy-three days had elapsed after receiving its contract and order from the defendant Willard. While other reasons which will be stated hereafter are sufficient to show that the so-called responsibility clause has no bearing whatever upon this ease, it- may be well to call attention to the fact that a reasonable interpretation of that clause leads to the conclusion that the plaintiff, Western Well Works, Incorporated, is not excused for any negligence on its part in performing its contract according to the terms and time therein specified, but is only excused by delays occasioned by strikes, civil or military authority, or other hindrances or calamities beyond its control. The whole clause, we think, must be read together and two or three words contained therein cannot be extracted therefrom and given a meaning different from the predicate or basis upon which the release from liability is founded. We do not

[4] There is another principle of law, as we have said, which is applicable and controlling here (sec. 1651, Civ. Code): “Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intentions, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded.” This gives precedence to the written clause to which we have hereinbefore referred and if there is any repugnancy between it and the printed responsibility clause contained in the contract, the written provision is controlling. Thus, if by any possible construction the responsibility clause being printed can be held to excuse the Western Well Works, Incorporated, from its own in-excused delay, the written provision to which we have referred would be repugnant thereto, and would be the one by which this contract is governed. [5] Again, section 1652 of the Civil 'Code provides for an interpretation which will give effect to all of the clauses of the contract. By the interpretation which we have adopted, effect is given to all of the clauses of the contract, when the responsibility clause is limited to the basis or predicate upon which it is founded, to wit: strikes, civil or military authority, hindrances, or calamities beyond the control of the contracting party. [6] If the contract is ambiguous in any respect, it must be interpreted in the sense in which the promisor believed at the time of making it that the promisee understood it. (Sec. 1649, Civ. Code.)

The transcript shows beyond question that the parties to the contract were contracting for delivery at once. While it does not seem necessary to cite any authorities to support the application of the sections of the Civil Code in the pres

[7] It is finally argued by the respondent that the defendant Willard has suffered no damage by reason of the failure of the plaintiff to promptly perform its part of the contract, according to the agreement therein contained. It is argued that the giving of credit on the promissory note executed by the defendant Marr of the sum of eight thousand dollars, being equivalent to the rental covenanted to be paid for the lands that were not seeded to • rice, or upon which rice was not grown, was purely voluntary; that if the defendant Willard was liable to Marr for any item of damages, it is not alone for the rent covenanted to be paid, but also for the profits that might have been realized from the rice that could have been grown upon the premises had water been furnished. This is only an argument as to the amount of the defendant Willard’s liability to his tenant by reason of the failure of the lessor Willard to comply with the terms of his lease and does not go to the question of liability. Nor do we think the credit on the promissory note can be construed in the light of a voluntary action on the part of the defendant Willard. Willard was under the legal liability of recompensing his tenant for all damages suffered by the latter by reason of Willard’s failure to install pumps, etc., as agreed to by him, and the fact that Willard acknowledged his liability and sought to make

It is next argued that if the lands had been seeded to rice, it is probable that no crop would have been harvested therefrom by reason of the fact that certain portions constituting the lower lands pf the two thousand five hundred acre tract included in the lease were not harvested by reason of being flooded during the harvest time. We find no merit in this contention.

It follows from what has been said that the judgment appealed from must be reversed and the order granting a non-suit as to the defendant’s cross-complaint set aside, and it is so ordered. •

A petition by respondents to have the cause- heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 5, 1926.