MR. JUSTICE PREEBOURN:
This is an action brought by Clayton Richardson, plaintiff and respondent, against Emma Crone, defendant and appellant, for services rendered in combining and hauling wheat.
Following an instruction from the trial judge, the jury returned a verdict for plaintiff and against defendant. From a judgment in plaintiff’s favor, defendant appeals.
The complaint alleges: That at defendant’s request, plaintiff, between August 11 and August 19,1949, combined and harvested the wheat on 357 acres of land and hauled 3,933 bushels of grain from the land to the grain elevators at Whitetail, Montana; that the agreed price for such services was $3 per acre for the combining and 5‡ per bushel for the hauling; and that payment for such services had not been made. Judgment was asked in the amount of $1,267.65 with interest thereon at the rate of six per cent per annum from August 20, 1949.
The answer admitted such services were rendered and the value thereof, but denied the amount was owing. Such answer set up a counterclaim wherein it was alleged that such services were performed under an oral contract whereby plaintiff agreed, when defendant notified him the wheat was ready, to immediately start five machines combining such wheat; that on August 7, 8 and 10, 1949, she notified him the wheat was ready for harvesting and to bring five combines; that on August 11, 1949, plaintiff commenced combining with but one combine and on [202]*202August 17 started four additional combines; that on August 15 standing wheat was damaged by wind and hail; that had plaintiff started five combines, as agreed, the damaged wheat would have been harvested before the wind and hail came; and that defendant thereby lost 2,109.04 bushels of wheat valued at $4,218.08. Judgment was asked for $4,218.08, less the $1,267.65 claimed by plaintiff, with interest on such difference.
By reply plaintiff put in issue the new matters contained in the answer.
But one witness testified. This was defendant, who called as a witness by plaintiff. When asked, ‘ ‘ Just what were the terms of the contract?,” she said, “That he should come on to my place as soon as my grain was ready for combining, come on with five machines and do the work, and I was to pay him three dollars an acre plus five cents per bushel for hauling, for his services, and I was to drop him a card. He said he would come in three or four days to look at the grain again, it wasn’t quite ready. * * * In the meantime I was to drop him a card and keep him posted.
“Q. Was there anything- else said at that time, was that all that was said about the terms of the contract ? A. I think we’ve covered it, he was to come with five machines when the grain was ready. * * * Just how it was worded between us and all that, I can’t remember the exact wording after two years, but he did agree to come with five machines. ’ ’
Defendant’s testimony shows that the contract between the parties was a grain combining and hauling contract only. She testified:
“Q. Well, at that time you didn’t have any idea that you were making- any kind of a contract but a combining and grain hauling contract ? A. That’s right. ’ ’
Defendant’s testimony also makes it clear that, in making the oral contract, it was not within the contemplation of the parties that plaintiff would be liable for damage to the grain by hail or weather, even though plaintiff did not commence combining with five machines.
She testified:
[203]*203‘ ‘ Q. And did you mention to him at that time, that you expected him to insure your crops against any acts of God ? A. No.
“Q. Never mentioned anything like that to him at that time? A. No, I didn’t * * * Acts of God? No, it never occurred to me to ask him to insure me against any acts of God. * * *
“Q. You didn’t expect him at that time to assume any responsibility to you for any loss or damage to your crops by hail, did you? A. No.”
R. C. M. 1947, sec. 13-714, is controlling here. It provides that, ‘ ‘ However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.”
The authorities generally agree that the damages recoverable in cases such as this must be limited to such as may fairly be supposed to have been within the contemplation of the parties when they entered into the contract. Myers v. Bender, 46 Mont. 497, 129 Pac. 330, Ann. Cas. 1916E, 245; Hall v. Advance-Rumley Thresher Co., 65 Mont. 566, 212 Pac. 290; Healy v. Ginoff, 69 Mont. 116, 220 Pac. 539.
In Hayes v. Cooley, 13 N. D. 204, 100 N. W. 250, 251, a case where plaintiff sought to foreclose a thresher’s lien and wherein the defendants counterclaimed for damages to flax which plaintiff failed to thresh as agreed, the North Dakota Supreme Court said: “Upon the facts of this case we are compelled to hold, both upon principle and authority, that the defendants cannot recover the damages in question. The fundamental error in their contention lies in the assumption that where a thresher ■ has, by failure to perform his contract, exposed crops to storms, and they are thereby destroyed, the loss is the natural and proximate consequence of his breach of contract. It is true, subsequent events may, and in this case they do, show that the loss would not have occurred but for the delay; but the indisputable fact remains that the storm is the direct and efficient cause of the loss, and for such loss, save under contracts resting upon exceptional circumstances, to which we will hereafter refer, he is not liable. It is well settled that, where one’s failure to perform his [204]*204contract merely exposes- property to destruction by causes for which he is not responsible, the supervening cause, and not his failure to perform, is the proximate cause of the loss. * * * The findings in this case merely present the breach of an ordinary contract to thresh grain. The loss of crops which may follow the breach of such a contract is, as we have seen, a remote, and not a natural and proximate, consequence of the breach.” See also, Lynn v. Seby, 29 N. D. 420, 151 N. W. 31, L. R. A. 1916E, 788.
The record shows, when plaintiff rested his case upon the testimony of defendant and made his motion for a directed verdict, that defendant gave no indication that she had any evidence to offer and made no move to call any witness to the state.
One may well assume that the only possible witnesses to the making of the oral contract were plaintiff and defendant, and since neither side called plaintiff as a witness, and defendant having’ given a version of the contract and alleged breach thereof most favorable to her, the trial judge was in a position to properly decide the question of law raised by the motion for a directed verdict. See, Williamsburg City Fire Ins. Co. v. Lichtenstein, 181 App. Div. 681, 169 N. Y. S. 146.
This assumption is given color by the fact that the record discloses that no objection was made by defendant either to the motion for a directed verdict as made, or to the instruction by the court directing the jury to bring in such verdict.
"Where, upon the trial of an issue by a jury, the ease presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto.” R. C. M. 1947, sec. 93-5205.
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MR. JUSTICE PREEBOURN:
This is an action brought by Clayton Richardson, plaintiff and respondent, against Emma Crone, defendant and appellant, for services rendered in combining and hauling wheat.
Following an instruction from the trial judge, the jury returned a verdict for plaintiff and against defendant. From a judgment in plaintiff’s favor, defendant appeals.
The complaint alleges: That at defendant’s request, plaintiff, between August 11 and August 19,1949, combined and harvested the wheat on 357 acres of land and hauled 3,933 bushels of grain from the land to the grain elevators at Whitetail, Montana; that the agreed price for such services was $3 per acre for the combining and 5‡ per bushel for the hauling; and that payment for such services had not been made. Judgment was asked in the amount of $1,267.65 with interest thereon at the rate of six per cent per annum from August 20, 1949.
The answer admitted such services were rendered and the value thereof, but denied the amount was owing. Such answer set up a counterclaim wherein it was alleged that such services were performed under an oral contract whereby plaintiff agreed, when defendant notified him the wheat was ready, to immediately start five machines combining such wheat; that on August 7, 8 and 10, 1949, she notified him the wheat was ready for harvesting and to bring five combines; that on August 11, 1949, plaintiff commenced combining with but one combine and on [202]*202August 17 started four additional combines; that on August 15 standing wheat was damaged by wind and hail; that had plaintiff started five combines, as agreed, the damaged wheat would have been harvested before the wind and hail came; and that defendant thereby lost 2,109.04 bushels of wheat valued at $4,218.08. Judgment was asked for $4,218.08, less the $1,267.65 claimed by plaintiff, with interest on such difference.
By reply plaintiff put in issue the new matters contained in the answer.
But one witness testified. This was defendant, who called as a witness by plaintiff. When asked, ‘ ‘ Just what were the terms of the contract?,” she said, “That he should come on to my place as soon as my grain was ready for combining, come on with five machines and do the work, and I was to pay him three dollars an acre plus five cents per bushel for hauling, for his services, and I was to drop him a card. He said he would come in three or four days to look at the grain again, it wasn’t quite ready. * * * In the meantime I was to drop him a card and keep him posted.
“Q. Was there anything- else said at that time, was that all that was said about the terms of the contract ? A. I think we’ve covered it, he was to come with five machines when the grain was ready. * * * Just how it was worded between us and all that, I can’t remember the exact wording after two years, but he did agree to come with five machines. ’ ’
Defendant’s testimony shows that the contract between the parties was a grain combining and hauling contract only. She testified:
“Q. Well, at that time you didn’t have any idea that you were making- any kind of a contract but a combining and grain hauling contract ? A. That’s right. ’ ’
Defendant’s testimony also makes it clear that, in making the oral contract, it was not within the contemplation of the parties that plaintiff would be liable for damage to the grain by hail or weather, even though plaintiff did not commence combining with five machines.
She testified:
[203]*203‘ ‘ Q. And did you mention to him at that time, that you expected him to insure your crops against any acts of God ? A. No.
“Q. Never mentioned anything like that to him at that time? A. No, I didn’t * * * Acts of God? No, it never occurred to me to ask him to insure me against any acts of God. * * *
“Q. You didn’t expect him at that time to assume any responsibility to you for any loss or damage to your crops by hail, did you? A. No.”
R. C. M. 1947, sec. 13-714, is controlling here. It provides that, ‘ ‘ However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.”
The authorities generally agree that the damages recoverable in cases such as this must be limited to such as may fairly be supposed to have been within the contemplation of the parties when they entered into the contract. Myers v. Bender, 46 Mont. 497, 129 Pac. 330, Ann. Cas. 1916E, 245; Hall v. Advance-Rumley Thresher Co., 65 Mont. 566, 212 Pac. 290; Healy v. Ginoff, 69 Mont. 116, 220 Pac. 539.
In Hayes v. Cooley, 13 N. D. 204, 100 N. W. 250, 251, a case where plaintiff sought to foreclose a thresher’s lien and wherein the defendants counterclaimed for damages to flax which plaintiff failed to thresh as agreed, the North Dakota Supreme Court said: “Upon the facts of this case we are compelled to hold, both upon principle and authority, that the defendants cannot recover the damages in question. The fundamental error in their contention lies in the assumption that where a thresher ■ has, by failure to perform his contract, exposed crops to storms, and they are thereby destroyed, the loss is the natural and proximate consequence of his breach of contract. It is true, subsequent events may, and in this case they do, show that the loss would not have occurred but for the delay; but the indisputable fact remains that the storm is the direct and efficient cause of the loss, and for such loss, save under contracts resting upon exceptional circumstances, to which we will hereafter refer, he is not liable. It is well settled that, where one’s failure to perform his [204]*204contract merely exposes- property to destruction by causes for which he is not responsible, the supervening cause, and not his failure to perform, is the proximate cause of the loss. * * * The findings in this case merely present the breach of an ordinary contract to thresh grain. The loss of crops which may follow the breach of such a contract is, as we have seen, a remote, and not a natural and proximate, consequence of the breach.” See also, Lynn v. Seby, 29 N. D. 420, 151 N. W. 31, L. R. A. 1916E, 788.
The record shows, when plaintiff rested his case upon the testimony of defendant and made his motion for a directed verdict, that defendant gave no indication that she had any evidence to offer and made no move to call any witness to the state.
One may well assume that the only possible witnesses to the making of the oral contract were plaintiff and defendant, and since neither side called plaintiff as a witness, and defendant having’ given a version of the contract and alleged breach thereof most favorable to her, the trial judge was in a position to properly decide the question of law raised by the motion for a directed verdict. See, Williamsburg City Fire Ins. Co. v. Lichtenstein, 181 App. Div. 681, 169 N. Y. S. 146.
This assumption is given color by the fact that the record discloses that no objection was made by defendant either to the motion for a directed verdict as made, or to the instruction by the court directing the jury to bring in such verdict.
"Where, upon the trial of an issue by a jury, the ease presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto.” R. C. M. 1947, sec. 93-5205.
In Consolidated Gold & Sapphire Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152, 156, this court said: "So, too, whenever the defendant has failed to make proof of his defense, but has left the plaintiff’s ease, as shown by his evidence, uncontroverted, and this stands unimpeached so that but one inference may be drawn from it; and that favorable to the plaintiff, it has been the practice for the court to direct a verdict for the plaintiff. This course was pursued in Mayer v. Carothers, 14 Mont. [205]*205274, 36 Pac. 182, and was recognized as the proper rule of practice in Emerson v. Eldorado Ditch Co., 18 Mont. 247, 44 Pac. 969, and Murray v. Hauser, 21 Mont. 120, 53 Pac. 99. When a case is in this condition, it is stripped of questions of fact, and presents only a question of law for decision by the court. Helena Nat. Bank v. Rocky Mt. Tel. Co., 20 Mont. 379, 51 Pac. 829, 63 Am. St. Rep. 628; Emerson v. Eldorado Ditch Co., supra; Murray v. Hauser, supra; Dunseth v. Butte Electric Ry. Co., 41 Mont. 14, 108 Pac. 567.”
For the reasons stated the judgment of the district court is affirmed.
MR. CHIEF JUSTICE ADAIR and ASSOCIATE JUSTICE BOTTOMLY, concur.