Kelley v. Peterson

Lake, J.

Do the facts alleged constitute a cause of action? In overruling the general demurrer to the petition, the county court first, and the district court afterwards by affirming that judgment, answered this question in the affirmative.

The substance of the petition is that Kelley, the defendant in the action, contracted with the plaintiff to cut his crop of wheat, about thirty acres, when ready. to be harvested, for the agreed price of one dollar and twenty-five cents per acre. That when said wheat was ripe and ready to be harvested the plaintiff notified 'the defendant of the fact, but the “ defendant refused and neglected to cut plaintiff’s wheat as defendant had ■ agreed and contracted, whereby ****** *80 said, wheat was damaged and wasted,” to his — the plaintiff’s — damage “ in the sum of one hundred and seventy-one dollars and thirty cents.”

The first and principal criticism of this pleading is in reference to the proper effect to be given to the word “as” in the above quotation. Counsel contend that by giving to this word its proper meaning the allegation is not that “ the defendant did not cut the wheat at all,” but that the work was not performed “in the manner agreed and Contracted;” in other words, was not well done. This, we think, is much too narrow a scope to be given to-the allegation. But even if it be not, how could such construction possibly benefit the defendant now ? Even if his real failure were only in the manner of performance, still he would be clearly liable for all the loss thereby legitimately occasioned. Eor instance, supposé he did actually cut the wheat, but in so slovenly a way that, as a necessary result, a considerable part of it was wasted, would he not be liable for the damage ? Certainly he would, even if it amounted to _ the full value of the growing crop.

But, as before suggested, the view taken by counsel of this petition is too narrow, and the construction of the language employed too arbitrary. It was evidently the intention of the pleader to charge upon the defendant a total failure to perform his part of the agreement, and so it would be understood, we doubt not, by ninety-nine out of every one hundred persons of ordinary intelligence, and not inclined to be hypercritical.

Mr. "Worcester, in his valuable dictionary, in a note to the word “ as,” remarks: “ As sometimes takes the place of a relative pronoun, and is equivalent to who, or which.” And this quality may very properly be given to it in the connection in which it is here used. *81 So understood, the allegation in effect, is, “ that said defendant refused and neglected to cut plaintiff’s wheat,” which “ defendant had agreed and contracted ” to do. And this, doubtless, is the sense in which the pleader used it and intended it should be understood. We consider the allegation sufficient to sustain a judgment for the full valúe of the crop if, in consequence of any fault of the defendant in the performance of his agreement, the damage reached that amount.

But it is asked by counsel: “ Can a party recover as damages, for the breach of a contract to cut grain, the value of the entire crop ?” Most certainly he can, if it be shown that the damages amount to so much, and that they are the proximate result'of such breach. It is true that the plaintiff, on becoming aware of the fact that the defendant would not cut the grain, was not at liberty to fold his arms and make no effort to save it from destruction. In such case the law imposes upon him the duty of doing all that he reasonably can to avoid loss. But if, notwithstanding his reasonable effort in that behalf, the grain be injured, or totally destroyed, in consequence of not being cut according to the agreement, he has his action to recover the damage resulting therefrom.

The petition sets out the substance of the contract, its performance.on the part of the plaintiff, and the refusal of the defendant to perform it on his part. Then follows the allegation that in consequence of the defendant’s refusal to cut the wheat it was damaged and wasted to the amount of one hundred and seventy-one dollars and thirty cents, for which sum judgment is prayed. This we regard as clearly sufficient, if true, to create a legal obligation on the part of the defendant to make good the. loss. The particulars of the loss, what was done by the plaintiff, after becoming *82 aware of tbe failure of the defendant, to save his grain, and all the particulars of the damage, could be shown by the testimony under this complaint. If upon any point the. defendant desired for his information a more particular statement, he should have moved for an order upon the plaintiff to make it. In such case a demurrer is not the proper remedy. For these reasons the judgment of the district court,' affirming the judgment of the county court, must be affirmed.

Judgment aeeirmed.