HUNT, Circuit Judge
(after stating the facts as above). The contention of the agricultural company is that the court should have directed a verdict on the ground that plaintiff could not recover either for damages to the potato crop, or for damages on account of expenses incidental to sending men from California to Oregon to work on tract No. 2.
Error is also assigned upon an instruction to the jury to the effect that it was the duty of the defendant to drain the land so that it would be susceptible of cultivation and in such a condition that the potatoes could be harvested; that it was its duty to put the lands in like condition as upland is naturally, or ordinary level land that is drained by natural sources or natural drainage ways; and that the people who were farming in the drainage district—
“ought to be placed in the same condition that people are in who are farming upon upland or the ordinary level lands, or even the flat lands that are not drained by special drainage construction like a district of this kind.”
The- court added:
“Now that gives you the idea of what the defendant was required to do for the protection of the plaintiff in tliis case, in so operating those pumps as to keep the drainage canal open, so that the water would naturally flow from this land into the sump and thereby be carried away from the land.” "
[1] Defendant concedes that there was an obligation upon the lessor to pump the water off in the spring, so as to fit the land for seeding, but argues that there was no obligation of any kind to operate the pumps late in the fall and early in the winter, and that to hold that defendant should have taken-care of water which the tide gates did not take off would be to interpolate into the lease an additional agreement never made nor intended by the parties. But we cannot agree to such a construction of the contract. On its face the lease referred to the lands as protected from overflow by two means — levees and a drainage [5]*5system thereon, of a character sufficient for protection under ordinary circumstances. Again, it was “expressly” agreed that Sing was not to be called on for rent until the lands and every part" thereof were in condition suitable and ready for the farming work to be performed— general farming, which plainly included raising of potatoes. Thus far, by plain understanding the lands leased were protected by a drainage system, and were to be turned over in condition lit for raising farm produce and were to be used by the lessee for farming purposes.
When we look at the duties assumed after possession should be had, we have the.obligation on the part of Sing to continue “at all times” during the lease to keep the irrigating ditches open, and on the part of the company to keep the “main drainage canals open and clean.” Just as it was the duty of Sing to keep the irrigating ditches open and clean, so was it the duty of the company to keep the main drainage canals open and clean. Such duties were continuous, and from each ío each. Next came the special provision by way of assurance whereby, in the possible event of a break in the levee, or a rise in the water table by reason of seepage to an extent to injure planted crops, the company was to reimburse Sing for expense, not alone of seeding, but also for the cultivation of the land to the time of injury, and would release him of rental for the acreage on which the crops might have been injured or ruined. Furthermore, as throwing light upon the true construction of the lease, we have the agreement, on the part of the company to pump the water off and drain the land, so that there may he the proper depth for the best seeding, and that the company would construct an additional main drainage canal in tract 1, “so as to afford additional drainage” of the land.
The essence of these agreements was that the Agricultural Company would use the means and methods referred to, not only to put the lands in suitable condition for farming purposes at the time that they were turned over to Sing, but that during the time of the lease the company would keep the main drainage canals open and clean, and also construct an additional main drainage canal to afford additional drainage. As the evidence shows the lateral ditches ran into the main drainage canals, obviously it was necessary that such main drainage canals should be kept open and clean, in order that the water might find its way to the sump from which the tide gates emit the water, and from which excess water was pumped over the levee. By keeping in mind the language we have referred to as employed in the lease, and the carefully imposed obligations therein assumed by the parties, and regarding the covenants entered into as pertaining to the leasing of lands to be drained so as to be fit for cultivation and general farming, we are very clear in the opinion that the duty of the company was to keep the main drainage canals so as to remove the surplus water to the end that the land might be used for the purposes for which it was leased.
[2] Whether the plaintiff performed his duty, and kept the smaller ditches open and clean, to the end that the water therein could drain from his lands into the main drainage canal, was one of the questions [6]*6tried in the case, as was the larger question whether or not Sing farmed properly and. with ordinary skill, and whether he planted and harvested at proper times. These issues were all submitted to the jury under careful instructions of the court, and as there is ample evidence to support the verdict in favor of the plaintiff, the lower court properly submitted the case to the jury, and this court will not review the testimony in support of the verdict.
[3] Referring specially to the instruction complained of, it should be read in connection with the main parts of the charge. When we do so, we find no possible prejudice to the rights of the defendant company. The court instructed that it was the duty of Sing to keep the lateral ditches open, in order that there might be afforded a regular drainage system through the lateral ditches into the main canal; that if Sing were negligent in planting his potatoes, or if he negligently allowed them to mature so late as to prevent the crop being saved, because they would not mature under natural conditions, then he could not recover; that under the lease there was no obligation on the company to furnish any other facilities for draining the rainfall from the land on which "the - potatoes were growing into the main ditches, except the small drainage ditches which were on’ the land when the lease was made; and that if Sing were negligent in keeping the laterals open he could not recover, but that the defendant was under an obligation to keep the large canals open, so that the water would flow to the sump and out of the sump to such lower depth that the drainage canal would operate to carry the water constantly to the sump, and thereby the water might be drained into the canals by the lateral ditches. The jury were told that they could consider the manner in which the potatoes were planted and hilled, the location of the small drainage ditches, the volume and frequency of the rainfall, height of water in the main drainage ditch during the time of the rainfall, and up to the time the crop was destroyed by water.
In the, second cause of action, which has to do with the 3,000 acres in the Beaver district, plaintiff sued for damages caused by the failure of defendant to. deliver possession of the land.
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HUNT, Circuit Judge
(after stating the facts as above). The contention of the agricultural company is that the court should have directed a verdict on the ground that plaintiff could not recover either for damages to the potato crop, or for damages on account of expenses incidental to sending men from California to Oregon to work on tract No. 2.
Error is also assigned upon an instruction to the jury to the effect that it was the duty of the defendant to drain the land so that it would be susceptible of cultivation and in such a condition that the potatoes could be harvested; that it was its duty to put the lands in like condition as upland is naturally, or ordinary level land that is drained by natural sources or natural drainage ways; and that the people who were farming in the drainage district—
“ought to be placed in the same condition that people are in who are farming upon upland or the ordinary level lands, or even the flat lands that are not drained by special drainage construction like a district of this kind.”
The- court added:
“Now that gives you the idea of what the defendant was required to do for the protection of the plaintiff in tliis case, in so operating those pumps as to keep the drainage canal open, so that the water would naturally flow from this land into the sump and thereby be carried away from the land.” "
[1] Defendant concedes that there was an obligation upon the lessor to pump the water off in the spring, so as to fit the land for seeding, but argues that there was no obligation of any kind to operate the pumps late in the fall and early in the winter, and that to hold that defendant should have taken-care of water which the tide gates did not take off would be to interpolate into the lease an additional agreement never made nor intended by the parties. But we cannot agree to such a construction of the contract. On its face the lease referred to the lands as protected from overflow by two means — levees and a drainage [5]*5system thereon, of a character sufficient for protection under ordinary circumstances. Again, it was “expressly” agreed that Sing was not to be called on for rent until the lands and every part" thereof were in condition suitable and ready for the farming work to be performed— general farming, which plainly included raising of potatoes. Thus far, by plain understanding the lands leased were protected by a drainage system, and were to be turned over in condition lit for raising farm produce and were to be used by the lessee for farming purposes.
When we look at the duties assumed after possession should be had, we have the.obligation on the part of Sing to continue “at all times” during the lease to keep the irrigating ditches open, and on the part of the company to keep the “main drainage canals open and clean.” Just as it was the duty of Sing to keep the irrigating ditches open and clean, so was it the duty of the company to keep the main drainage canals open and clean. Such duties were continuous, and from each ío each. Next came the special provision by way of assurance whereby, in the possible event of a break in the levee, or a rise in the water table by reason of seepage to an extent to injure planted crops, the company was to reimburse Sing for expense, not alone of seeding, but also for the cultivation of the land to the time of injury, and would release him of rental for the acreage on which the crops might have been injured or ruined. Furthermore, as throwing light upon the true construction of the lease, we have the agreement, on the part of the company to pump the water off and drain the land, so that there may he the proper depth for the best seeding, and that the company would construct an additional main drainage canal in tract 1, “so as to afford additional drainage” of the land.
The essence of these agreements was that the Agricultural Company would use the means and methods referred to, not only to put the lands in suitable condition for farming purposes at the time that they were turned over to Sing, but that during the time of the lease the company would keep the main drainage canals open and clean, and also construct an additional main drainage canal to afford additional drainage. As the evidence shows the lateral ditches ran into the main drainage canals, obviously it was necessary that such main drainage canals should be kept open and clean, in order that the water might find its way to the sump from which the tide gates emit the water, and from which excess water was pumped over the levee. By keeping in mind the language we have referred to as employed in the lease, and the carefully imposed obligations therein assumed by the parties, and regarding the covenants entered into as pertaining to the leasing of lands to be drained so as to be fit for cultivation and general farming, we are very clear in the opinion that the duty of the company was to keep the main drainage canals so as to remove the surplus water to the end that the land might be used for the purposes for which it was leased.
[2] Whether the plaintiff performed his duty, and kept the smaller ditches open and clean, to the end that the water therein could drain from his lands into the main drainage canal, was one of the questions [6]*6tried in the case, as was the larger question whether or not Sing farmed properly and. with ordinary skill, and whether he planted and harvested at proper times. These issues were all submitted to the jury under careful instructions of the court, and as there is ample evidence to support the verdict in favor of the plaintiff, the lower court properly submitted the case to the jury, and this court will not review the testimony in support of the verdict.
[3] Referring specially to the instruction complained of, it should be read in connection with the main parts of the charge. When we do so, we find no possible prejudice to the rights of the defendant company. The court instructed that it was the duty of Sing to keep the lateral ditches open, in order that there might be afforded a regular drainage system through the lateral ditches into the main canal; that if Sing were negligent in planting his potatoes, or if he negligently allowed them to mature so late as to prevent the crop being saved, because they would not mature under natural conditions, then he could not recover; that under the lease there was no obligation on the company to furnish any other facilities for draining the rainfall from the land on which "the - potatoes were growing into the main ditches, except the small drainage ditches which were on’ the land when the lease was made; and that if Sing were negligent in keeping the laterals open he could not recover, but that the defendant was under an obligation to keep the large canals open, so that the water would flow to the sump and out of the sump to such lower depth that the drainage canal would operate to carry the water constantly to the sump, and thereby the water might be drained into the canals by the lateral ditches. The jury were told that they could consider the manner in which the potatoes were planted and hilled, the location of the small drainage ditches, the volume and frequency of the rainfall, height of water in the main drainage ditch during the time of the rainfall, and up to the time the crop was destroyed by water.
In the, second cause of action, which has to do with the 3,000 acres in the Beaver district, plaintiff sued for damages caused by the failure of defendant to. deliver possession of the land. As already stated, there was a provision in the lease for the erection by the company of a set of buildings upon each 500 acres of the leased land, the buildings to be erected at such places as might thereafter be mutually agreed upon by the parties to the lease; also a provision that the rental of the Beaver district land should not commence to run until January 1, 1918, although possession was to have been taken on or about the 1st of August, 1917 — the lessee agreeing to prepare the ground for the next year’s crops. Sing testified that he saw a representative of the defendant company about October 10th, and asked him to put up the buildings in the Beaver district, and that the agent of the company said he was going to put them up pretty soon. Sing also said that he talked again with him in November about the buildings, but no building was started until just before Christmas 1917. In November, 1917, Sing wrote to the defendant that he had been disappointed in promises of people to take up the whole 3,000 acres, and that he believed that he would be able to cultivate only about 1,500 acres during the ensuing [7]*7year, and he wanted a directors’ meeting called to sanction him in cultivating 1,500 acres during the coming year.
There is evidence to the effect that Sing met an agent of the defendant and agreed that the 3,000 acres should be cut up into 500-acre tracts, that improvements were to he made upon each of such tracts, and that this should be done in order that Sing might take possession and go ahead with the work. Plaintiff’s evidence tended to show that the company did not do any work on the land and did not build the buildings, further than to put material upon the ground. There is evidence that the land of the Beaver 'district was flooded with water late in December and was in no condition for farming, and that on January 5, 1918, Sing notified the company that, in view of the failure to perform the conditions of the lease with respect to building certain buildings and to perform certain other work, he would cancel the lease. In that same letter Sing advised the company that the called-for $3,600 rental for 1917 was for 400 acres, but that, inasmuch as the company had only turned over to him 200 aci-es, the rental should not exceed $1,800, and that, as the company then had in its possession $2,000 of his money, there was a credit with them in his favor of $200, which amount he asked the company to return to him. To this letter an agent of the company replied that the directors would meet on the following Friday, when his letter would be submitted, requesting Sing that he write his proposal to rent smaller acreage in the Beaver district and his wishes regarding lands in the Midland camp.
[4] It is contended by the company that there was a voluntary rescission of the lease, whereby Sing escaped all possible liability for any going on with the contract and all risk of carrying out the lease lor the next four years. The view taken by the learned judge of the District Court was that, notwithstanding the rescission as to the 3,-OOO-acre tract, Sing was entitled to’ be put in statu quo, and that in order for him to be so put he should be paid for such expenses as he may have been put to in bringing men to the ground and transporting implements for the purpose of taking possession and working the lands: Provided, the company had broken the agreement it had entered into by not having put the lands in condition for the plaintiff to take possession of them. The court added that Sing could not recover unless there was such breach.
The general principle embodied in the instruction of the court was correct. In United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168, it was held that where one has voluntarily and wrongfully put an end to a contract, he cannot be heard to say that the party injured has not been damaged at least to the amount of what he has been induced in good faith to pay out and expend after making allowance for the value of the material on hand; that the one in default cannot say this, unless he can show that the expenses of the party injured have been extravagent and unnecessary for the purpose of carrying out the contract. Justice Bradley, for the court, said:
“The distinction between those claims under a contract which result from a performance of it on the part of the claimant, and those claims under it which result from being prevented by the other party from performing it, [8]*8has not always been attended to. The party who voluntarily and wrongfully puts an end to a contract and prevents the other party from performing it is estopped from denying that the injured party has not been damaged to the extent of his actual loss and outlay fairly incurred.”
[5] The Behan'Case also disposes of any suggestion that there can be no recovery under the pleading .of the second cause of action, because it is based upon the theory'of a breach of contract, in that the court held that the particular form of the complaint ought not to preclude claimant from recovering what was fairly shown by the evidence to be damage sustained by him by way of losses for outlay and expenses.
Alabama Oil & Pipe Line Co. v. Sun Co. (Tex. Civ. App.) 90 S. W. 202, turned largely upon the particular facts discussed by the court, which held that there never was any intention on the part of the plaintiff in that case to reserve the right to hold the appellees for damages for precedent breaches of the contract, and that the appellee had a right to assume that whatever results the law attached to an unreserved and unconditional cancellation were in contemplation by the appellant, and that under the facts appellant waived all right to recover damages for the breach of the contract by the appellee.
It may be that the rule in the Behan Case goes farther than that stated in the decisions cited by defendant, but, by the authority of the Behan Case, Sing, having shown himself substantially entitled to relief, should not be denied recovery of the claim for losses sustained by outlay and expenses. United States v. Molloy, 127 Fed. 953, 62 C. C. A. 585.
[6] By writ of error sued out by Sing the question is whether the court erred in instructing the jury to this effect: That the company had pleaded as a set-off that Sing rented 400 acres of land in tract 1 from the defendant, and agreed to pay $9 per acre, or $3,600; that $2,000 had been paid thereon, leaving due the company from Sing $1,600; that as a matter of law the company was entitled to recover $1,600 from Sing, and to have that amount set off 'against any amount that the jury might find was due to Sing from the company.
The lease, as already shown, called for 400 acres, tract 1, for 1917, at $9 per acre per annum, the land to be selected' by Sing, his selection to be made known to the lessor. There were provisions respecting no rental until the possession was given, and an agreement respecting measurement of the tracts. There were also provisions which we do not think it necessary to set forth, as the real point is whether Sing was' responsible for the rent for the full 400 acres at $9 per acre, or only for about 200 acres, the land actually used by him.
The lease, however, was a contract for the létting of 400 acres in the Midland district; and, considering the fact that the company turned over to Sing for selection 400 or more acres of tillable land, it became the duty of Sing to select the particular 400 acres he wished to lease, and then to notify the company. During 1917, if the crops were unsatisfactory, he had a right to cancel the lease of tract 1 upon paying to the lessor the further sum of $1,600. Sing made no claim in the farming season of 1917 that he had not been given the full 400 [9]*9acres, or that he intended to pay only for such land as he actually used. He made a payment as required by the lease on August 1, of $720, or one-fifth of the whole rent, and thus recognized that he was liable for the full $3,600. He thereafter secured extensions of time for payment of further installments, but made no claim of exemption from liability for $3,600 rental. Nor did he ever make such a claim when the lease was canceled. Whether Sing used and farmed the 400 acres was not material, so long as they were turned over to him and were available for use by him.
We think the obligation to pay for the 400 acres was incurred and that the court was right, in its ruling. As the record shows that neither party has been prejudiced by the judgment rendered, it will be affirmed.
So ordered.