Cotton v. Jennings Irrigation Co.

— 7 — The opinion of the court was delivered by Njcholls, C. J. The first defense urged is that Pardee, who signed the contract on behalf of .the defendant company which was declared on, was not authorized to do so. The plaintiff introduced testimony showing that several other contracts were executed by him with other parties, and that the defendant made settlements with the rice planters with whom they were made. Plaintiff himself testified that when he notified the president of the company that he needed water, the latter raised no question as to the non-existence of the contract, but in the presence of two other persons (who testified to the same effect) answered “all right.” That later when he made a proposition to compromise his claim, the president and members of the hoard of trustees met together the same day and at that meeting (though the proposition was not accepted) there was nothing said looking to a repudiation of Pardee’s action in making the contract. The president of the company, as a witness on the stand, admitted having been notified by the plaintiff to furnish water. His version of the interview differs from that of the witnesses testifying to the same only as to the answer which he made on that occasion. His testimony on that subject was: “Mr. Cotton came in with two witnesses and served notice on me — was ready for water— would he in ten days — and I made the remark, ‘ all right’ — we will get it to you just as soon as we can.” He testified that the first intimation he had as to the plaintiff’s claiming to have a “contract” with the company for irrigating was the day he was so notified; that he told the plaintiff several times that “the company was not making contracts, especially west of Grand Marais”; that they (the farmers) 'could see what was to he done to get the water to them, and they would have to take their chances.” Asked on cross-examination whether he had on receiving notice to furnish water denied the authority of Mr. Pardee to make the contract, he answered that “he did not know that he did,” and asked whether there was anything said between plaintiff and himself about recognizing any written contract which plaintiff claimed he had entered into with the company, he answered “he did not think there was.” He denied having made settlements with other parties on the basis of their having “contracts” with them; he dealt with parties as he had done the year before, upon merely verbal agreements; that if the company furnished the water they would pay two sacks to the acre; if it did not furnish the water, of course it would not collect rent. These parties, as witnesses, testified that the settlements with — 8 — them were made as compromise settlements. The company was not paid at the full rate of two sacks per acre, but they paid one-fifth on account of “not getting the water quite early enough to make a good crop.” The compromise was made with Captain Sweet, the president. “No contract was produced as the reason for collecting rent.” The next defense is that the company made no absolute contracts with anyone in the neighborhood of the Grand Marias to furnish water for irrigating purposes; that all that the company undertook was to irrigate the farmers’ crops for 1900, should matters get into position such as to enable it to do so; should they be able to and did irrigate it was to be paid two sacks of rice per acre for the land irrigated. Defendant denied it ever entered into any legal obligation to have its canal ready; the company simply promised to make reasonable exertions to complete it. It contended it did make such exertions, but that the wet season of 1900 prevented it from accomplishing more than it did. The third defense was that if the defendant was contingently liable it was not placed in default. Our attention is called in this respect to the fact that plaintiff was under obligations (if the contract was binding) to himself construct the lead ditches to and over his land, and he never did so; that he was therefore never ready and had never placed himself in position to receive water from the defendant. Article 1913 of the Code declares that in commutative contracts where the reciprocal obligations are to be performed at the same time or one immediately after the other, the party who wishes to put the other in* default must, at the time and place expressed in, or implied by the agreement, offer or perform as the contract requires that which on his part was to be performed, otherwise the opposite party will not be legally put in default. "We are not prepared to say that a mere preliminary notice by the plaintiff to the defendant that he needed water; that he would be ready to receive it in ten days, and that defendant must furnish it at that time, would have been a compliance with the law as to place defendant in default, but before reaching that point the question arises whether a putting in default could have been exacted in this case. In the first place it is shown under the evidence that defendant was not in a position to have been able to comply with the demand and in the next place it denied absolutely any obligation on its part to furnish water — 9 — to the plaintiff, under the circumstances. While it was right and proper for plaintiff to have made a demand for the water, we do not think in view of the fact that defendant was never in fact in a position to supply it, that defendant can set up the want of a strict putting in default. It is true that plaintiff never constructed the lead ditches, but this was obviously for the reason that it was apparent that the canal would not be completed to plaintiff’s farm so as to make the ditches necessary. TIad occasion called for the same, they would unquestionably have been dug. The evidence shows it would have taken very little time to have prepared them. We may say here incidentally that when Article Í913 speaks of the party who desires to place the other in default being required to “himself perform that which was on his part required to be performed,” reference is made to some act to be performed by that party in favor of the other contracting party, as a consideration for what that other was called upon to do. We are satisfied under the evidence that defendant’s canal could have been brought forward so as to have enabled it to irrigate plaintiff’s land, had it made great exertions. The case was not one of “forcemajeure”; it was physically possible for defendant to have completed the canal to that point. Defendant of course knew the usual character of the seasons in May, and later months, in lower Louisiana, and the character of the country in and around Grand Marais, and that a rainy season would be likely to retard if not actually put an end to work on that portion of the line of the canal. It was possible for it to have postponed work elsewhere and concentrated it at the Marais. Philips, however, who was the contractor for the work, and one of the directors of the company, and also a rice farmer in the neighborhood but east of Grand Marais, used a portion of his working force to construct laterals for irrigation upon his own farm. We are not informed how many persons other than plaintiff would have required or would have been afforded water, through this additional exertion, which evidently called for heavier outlay. So far as the record discloses plaintiff was the only party (and he only contingently) interested in that matter, and that'fact calls to special attention the wording of the instrument upon which he has declared. By it the defendant was to be paid two sacks of rice “for the land irrigated.” Plaintiff did not bind himself to plant any particular — 10 — number of acres of rice, nor of those planted did he bind himself to have any part gf the same irrigated by the defendant. He was foot loose to take the chances on a successful “providence” crop, and to abstain if he thought proper from making any demand whatever upon the defendant. The defendant was not in position to require him either to plant or to irrigate any given number of acres. Had defendant pushed the work forward to meet its alleged obligation to do so under plaintiff’s contract, it might well be that on reaching the place plaintiff might declare that he needed no water and either make no demand for the same or a demand for an insignificant amount. There was no aggregatio mentium as to the land to be planted and to be irrigated. The thing in respect to which the contract was made was not fixed and determined. Under plaintiff’s construction of it, there was no equality or mutuality of obligation. In construing the contract we must look at the circumstances under which it was made. At its date the canal was over a mile away from plaintiff’s farm, with great uncertainty as to when and how far it would be extended that summer beyond the point it had then reached. We have no idea when plaintiff gave notice to the defendant that he needed the water and he must prepare to furnish it in ten dáys, that he' expected this demand would cr could be complied with. So far as the record discloses, he made no demand for any specific supply at that time. He testified that he told him (the president of the company), “I am here — I want water, and I want it bad, and as the contract provided for ten days, I want you to get ready for it. I need it bad.” We may say here that the evidence shows that plaintiff was preparing to make a crop long before the date of this contract' — as far back as January. An examination of the evidence causes us to reach the ■ conclusion that Pardee, who signed that contract, had been in the habit of calling himself the “manager” of the company (though he was not such in fact), and the president of the company was aware of his doing so; that he was not aware, however, that he had made the contract of the character such as plaintiff claimed his to be; that. Pardee was not authorized to make contracts binding the company as to completing its canal up to a particular place at any particular time; that if he was authorized to make contracts at all, it was limited to making contingent contracts and fixing the price of irrigation; that the plaintiff was not aware when his own particular contract was signed of the existence — 11 — or terms of the contracts which he introduced in evidence which were executed by Pardee with other parties; that the president of the company had not seen the contract on which plaintiff declares at the time that the latter called for water. Considering this matter under all its surounding circumstances and assuming that the defendant company by net expressly repudiating the authority of Pardee to make this particular contract at the time plaintiff made a demand for water, became committed to the recognition of Pardee’s authority, and assuming that under this contract the company was obligated towards plaintiff to make reasonable exertions for completing the canal to his farm, that clause we think should be construed very liberally in defendant’s favor. We do not think that it was called upon to go to unreasonable additional expense to meet mere possible demands to be made upon a single contract and one so uncertain in its terms as that which plaintiff held. We think that both parties looked to and contemplated the possibility of non-completion of the canal in time for the irrigation of the crop of 1900,' and the actual contractual relations of the parties were based contingently upon the canal reaching plaintiff’s farm. We do not think it can be said under the circumstances of this case that the defendant company failed in “using all reasonable means” to furnish the plaintiff with water; that he came under legal liability to plaintiff for not using greater means than it did. Under that view of the rights and obligations of parties the judgment appealed from is erroneous and it must be reversed. For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now-ordered, adjudged and decreed that the plaintiff’s demand be rejected and his suit dismissed with costs in both courts.