The complaint is not demurrable. It sets out a contract, and the acts of plaintiffs under it. It is not the " depreciation of the value of the ditch," but the use of the water running through the ditch, that plaintiffs urge as a ground of damages; and it was the very purpose of the dam " to cause the water to flow, in ordinary requirements, in the ditch." If the complaint was deemed indefinite in its statement of damage, an objection should have been made that could have reached it, in a proper way, in the lower Court. It cannot be raised by demurrer. (1 Van Santvoord's Eq. Practice, 190.) But the respondents had a right to set forth all the facts of the case, and if, in so doing, they established a right to recover on two different grounds, it is no cause for demurrer. (Mills v. Barney, 22 Cal. 240.)
The authorities cited by appellants, as to contracts void for want of mutuality, go to the extent onlythat they can be avoided if both parties have not acted. But it has been repeatedly held that when both have acted under the contract, though executed by one only, they can be sued, and want of mutuality is no defense. (Chitty on Contracts, 17; Worral v. Munn, 1 Selden, 229.)
As to the instructions of the Court to the jury, there is but a partial statement of evidence; and we submit that such being the fact, this Court will not reverse the case upon any mere supposed error, but will affirm the judgment, if the instructions might, under any state of evidence, have been proper. (Selden v. Cushman, 20 Cal. 67.) As to the definition of the word practicable, it is taken verbatim from the definition in Webster's Dictionary, and also as defined in Chitty on Contracts, 631, note 2.
If the contract set out by plaintiffs was ineffective on account of not being signed by them, they may recover on the verbal contract set up by the defendants in their answer; and, at any rate, the plaintiffs have a right to what they advanced to defendants, which is all the verdict the jury gave them.
JUDGES: Temple, J. Mr. Justice Crockett did not participate in the foregoing decision.
OPINION
TEMPLE, Judge
I think the demurrer to the complaint was properly overruled. Two causes of action were not joined in the complaint, although it may be that damages are claimed to which the plaintiffs are not entitled.
Under the circumstances revealed by the evidence, I think the Court properly found that the contract had been executed and was binding upon both parties. Both had acted upon it as a binding contract. The plaintiffs certainly would have been estopped from denying that it had become binding upon them, had suit been brought upon it by the defendants. At any rate, the fact that a verbal contract, containing precisely the same conditions, was entered into, is admitted, and no question of the Statute of Frauds is raised, and after this distinct admission of the contract could not be.
The contract required the dam to be completed in the year 1867, or as soon thereafter as practicable. The defendants, on the trial, claimed that they had made every effort required of them to construct the dam, and that it had not been practicable, within the meaning of the contract, to construct it, up to the time of the commencement of the action. Upon this point the Court instructed the jury as follows: " If you believe it was practicable, or if it was within the range of human means to have constructed it, then defendants are liable for not doing so. The word practicable means that which can be accomplished by human means."
The object of construction is to ascertain the intention of the parties in entering into the contract. The use of the phrase " as soon as practicable" implies that circumstances might occur which would delay the completion of the work. Nor can it be supposed that the defendants undertook to use every human means to accomplish the work. If it became important for a powerful nation to construct the dam as contemplated by the contract, a force might perhaps have been employed sufficient to complete it in a few days, and at any stage of the water. To hold the defendants responsible for the employment of such means would be at variance with the manifest intention of the parties. The word " practicable" cannot be understood with regard to the means at the command of the defendants, for they may have undertaken the work with means quite inadequate to its accomplishment; but it must be ascertained from the nature of the contract, the difficulties to be overcome, and the importance to the plaintiffs of an early completion. It is impossible to give a definition of the word which would apply to all cases. Each case will be governed by its own circumstances. It may be that the provision in this contract had reference mainly to the possibility of high water in the stream, which would prevent a performance. The urgent necessity for the work would sometimes show that most extraordinary efforts were called for to perform it. I think it ought to have been left to the jury to say whether, under the circumstances of this case, the defendants had employed all reasonable means and diligence to perform their contract. What would be reasonable, as I have said, would depend, in a great measure, upon the nature of the difficulties to be overcome and the importance of an early completion to the plaintiffs, in reference to which the defendants must have contracted. I think, therefore, the instruction was erroneous.
The rule of damages laid down in the contract has reference solely to the guarantee that the dam shall stand for five years from the date of its completion. The damages for failure to construct the dam according to contract, if any, must be ascertained by the ordinary rules upon the subject.
Judgment reversed, and cause remanded for a new trial.