APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.
Messrs. Phillips, Holzworth & Phillips and Messrs. McNabb & DeCamp, for Appellees.
[39 Ariz. 196] LOCKWOOD, J.
F.A. Charlebois and Juanita Charlebois, his wife, hereinafter called plaintiffs, brought suit against Peppers Fruit Company, a corporation, hereinafter called defendant, to recover damages on account of the failure of defendant to comply with the terms of a certain contract hereinafter described. The case was tried to a jury, which returned a verdict in favor of plaintiffs for the sum [39 Ariz. 197] of $930, and after the usual motion for a new trial had been overruled, the matter was brought before us for review.
There are some eight assignments of error which we will consider in their order. The first is that the court erred in overruling defendant's demurrer to the complaint. This necessitates an examination of the complaint. It alleges substantially as follows: That about July 1st, plaintiffs were the owners of 160 acres of land in the Salt River Valley, of which they leased 120 to defendant under an agreement that the latter should buy and pay for the irrigation water used on such 120 acres of land according to the rules of the Salt River Valley Water Users' Association. It then continues:
"That in the spring and summer of 1929 the defendant, having used its portion of the water, which, under the rules of said Association, could be appropriated to said 120 acres, and being unable to buy any additional water by reason of the rules, usages and customs and regulations of the said Salt River Valley Water Users' Association, and the defendant having a cantaloupe crop which had begun to suffer for water, and was in great danger of being wholly destroyed, and burning up, for the lack of water, came to these plaintiffs and agreed with the plaintiffs that if the plaintiffs would permit it to use the water that was coming to the plaintiffs on the
40 acres retained, that it would pay for any crop injured or destroyed by reason of the fact that the water on said 40 acres had become exhausted by use of it by the defendant. That the plaintiffs, in order to save the cantaloupe crop of the defendant, and having an alfalfa crop on the said 40 acres, agreed with the defendant that it should take the water belonging to the said 40 acres, which the plaintiffs retained, upon the express condition that defendant would pay for any injury or loss of any crop, or part of crops, lost on the 40 acres retained by plaintiffs, by reason of the fact that the water apportioned to said 40 acres was used by defendant.
[39 Ariz. 198] "That by reason of the use of the water by the defendant, the alfalfa crop on the said 40 acres was injured and destroyed, which 40 acres would have produced 62 tons of alfalfa hay more than it did produce if it had been watered as it could have been watered with the water delivered to defendant by said agreement, and the plaintiffs thereby lost 62 tons of hay by reason of the defendant using the water which the plaintiffs could have used on their alfalfa hay, which was worth, and was of the reasonable value of Fifteen Dollars ($15.00) per ton, or the total value of Nine Hundred Thirty Dollars ($930.00). . . ." (Italics ours.)
The complaint ends with the usual allegation of a demand for payment and the refusal of defendant to pay, and a prayer for damages.
It is the contention of defendant that the gist of the contract is the use of the water by it on its cantaloupe crop, and that plaintiffs having failed to allege that the water was all used on such crop, or that their hay was destroyed by reason of the use of the water on such crop, the damage occurred. We think the complaint does not rest upon the use of the water by defendant on the cantaloupe crop. The reference to that crop is merely and inducement stating the reason defendant desired to use the water. The contract was that defendant might use all of plaintiffs' water, and would pay for the crops destroyed by reason of such use, without any limitation of where or how the water should be used. The allegation follows that by reason of the use of plaintiffs' water by defendant the former's crops were damaged. We think the court properly overruled the demurrer.
The second assignment of error is that the court erred in refusing to instruct the jury to return a verdict for defendant at the close of plaintiffs' case because plaintiffs had failed to prove a breach of the contract or any damages. This assignment relies on the theory urged in support of the first assignment, to [39 Ariz. 199] wit, that the alleged agreement was to pay only in case defendant used plaintiffs' water on its cantaloupe crop. As we have indicated, the complaint does not limit the use of the water by defendant in that manner, and there was ample, and indeed conclusive, evidence in the record that defendant did use all plaintiffs' water, and sufficient to sustain the verdict that by reason thereof plaintiffs' alfalfa crops failed. The second assignment of error cannot be sustained.
The third assignment of error is that the following instruction was erroneous: "On the other hand, if you believe from the evidence that instead of the agreement which I have stated to you there was an agreement between the parties that Mr. Charlebois, the plaintiff, would give to the defendant the water which he then had purchased for his premises, and that the only consideration being that they would at all times leave sufficient water for him to properly irrigate his alfalfa crop, and that they did not agree to compensate him for any loss sustained, then your verdict should be for the defendant." (Italics ours.) defendant urges that this submits to the jury a theory of defense which was not that urged by defendant or presented in its pleadings, and that such instruction was erroneous. Defendant's ...