GARDNER, Chief Judge.
This is an appeal from a judgment in favor of plaintiff (appellee) and against appellant (defendant) for damages on account of the alleged breach of a contract of employment. The parties will be referred to as they were designated in the trial court.
Plaintiff is a man about 45 years of age, a resident of Williams County, North Dakota, and, according to his own testimony, has farmed practically all of his life and is familiar with wheat farming, knows [171]*171the types and stages wheat goes through from the time it is planted until it is harvested. In the latter days of May 1948 he purchased a sprayer to be used with a tractor and at the same time purchased fifty gallons of spray chemical intending to spray his wheat fields. In the meantime he heard from his neighbors about airplane spraying and due to the fact that it was getting late in the year and he was unable to use his own sprayer he says: “He went to Grenora for a sprayer on the 7th of June”. He there consulted the manager of the Farmers Elevator with reference to securing some one to spray his wheat by airplane. On the following day he purchased fuel to mix with the spray so that it might be used in the airplane sprayer. He testified that: “He went to Grenora a second time (June 14th) to get the pilot because he thought it was the proper time to spray his crop”. The manager of the Farmers Elevator telephoned the pilot operating defendant’s plane and apparently pursuant to this communication a Mr. Joe Drake, a pilot, landed a spraying plane on the farm of a neighbor. The plane landed at about 7 o’clock in the evening of June l'5th and plaintiff and his hired man Charles Riddel drove out some three-quarters of a mile to the place where the plane had landed. Plaintiff did not take Drake over the land to be sprayed but pointed it out to him from his automobile, explaining that he did not want it all sprayed. After pointing out the land he wished sprayed he drove the pilot back to the plane and then loaded his truck with the furnace fuel and drove it to the plane and the liquid spray mixed with the fuel oil was loaded into the spraying plane. The pilot did not inspect the field nor was he asked to do so. At the time the spraying was done plaintiff’s wheat was from 6 to 10 inches high but it had not started to head out but was in the “box stage”. The plaintiff testified that “by the box stage he means first there is the little plant and the next stage is the shooting stage when it starts shooting the stem up, then it forms into a box for the head and then heads out”. There was no conversation between Drake and the plaintiff with reference to the stage, height or condition of the wheat, Joe Drake the pilot was a resident of North Carolina, he was an expert airplane pilot. He had never been a wheat farmer, knew nothing about it, did not know what stage the wheat was in at the time he sprayed it and if he had seen it he would not have known. He testified “that he sprayed the: crop when plaintiff requested it to be sprayed and he did not inspect the crop, he was not asked to inspect it”. There is no evidence that the defendant through Drake, or anyone else, made any representations with reference to any superior knowledge as to the proper time or the proper stage of growth at which spraying should be done. There was evidence from which the jury might have found the wheat was damaged because of the application of the spray at the time when it was applied. At the close of all the evidence defendant interposed a motion for a directed verdict which motion challenged the sufficiency of the evidence to prove the material allegations of plaintiff’s complaint and to prove any negligence on the part of defendant in performing his contract, if there was such a contract. The motion also challenged the sufficiency of the evidence to prove that Joe Drake was the agent of defendant. The motion was overruled and the case submitted to the jury. The jury returned a verdict in favor of plaintiff for $2,750.00 on which judgment was subsequently entered. Following the entry of judgment the defendant interposed a motion for judgment notwithstanding the verdict which the court likewise overruled and this appeal followed.
While defendant on this appeal, as in his motion for a directed verdict, contends that the evidence was insufficient to prove that Joe Drake, the pilot who operated the airplane, was defendant’s agent and also urges that the court was without jurisdiction, we find these contentions without merit and put them aside without further consideration.
In considering the question of the sufficiency of the evidence we must view the evidence in a light most favorable to the prevailing party, in this case the plaintiff. If when so considered it can be said [172]*172that there is substantial evidence then the case should have been submitted to the jury. A mere scintilla of evidence however is not sufficient. Where fairminded men may honestly draw different conclusions from the evidence, the question of liability becomes one of fact. ; Ordinarily where the evidence is undisputed and is such that fair-minded men cannot reasonably reach different conclusions or inferences, the question of liability is one of law to be determined by the court. In the instant case there is no conflict in the testimony on any material issue.
This action did not sound in tort but was an action for damages for an alleged breach of contract, it being claimed that the contract was inefficiently performed. It is therefore necessary to consider the obligations arising because of the contract between the parties, because in the obligation assumed by a party to a contract is to - be found his duty, and his failure to comply with such duty constitutes the breach. It is elementary that the cardinal rule in the construction of contracts is to determine the intent of the parties. Where the contract is in writing this must usually be determined by the words of the contract. Here there was no written contract and it' must be determined to a large extent by the surrounding circumstances, the acts of the parties and how the parties themselves construed or interpreted it. There was no claim of fraud or misrepresentation of any kind.
There were at least two methods by which these grain fields could have been sprayed. Plaintiff, prior to any contact with the defendant or his representative, planned to do his own spraying and for that purpose purchased a sprayer and also the liquid for use. As has already been recited he was a wheat farmer of many years experience, he knew all about the various stages of the growth and development of wheat.1 He was certainly relying upon his own knowledge and judgment when he was proposing to apply the spray himself. The other method of, spraying was by use of the airplane. The effect of the application of the spray was the same whether applied from an airplane or from the ground sprayer. Plaintiff testified that be abandoned his plan to spray his own fields because- “I didn’t have a tractor to hook it up”, and he then through an intermediary contacted defendant through his agent Drake. He purchased and mixed his own spray and he determined the time of its application. When Drake landed his plane on a neighbor’s farm plaintiff and his hired man went to the plane and that was the first time the parties met. He did not advise Drake as to the stage of growth of his wheat, which confessedly he knew. Drake was a mechanic, not a chemist, a botanist nor an agronomist. He gave no advice, made no representations to plaintiff with reference to the proper time for spraying and plaintiff asked no questions touching that subject.
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GARDNER, Chief Judge.
This is an appeal from a judgment in favor of plaintiff (appellee) and against appellant (defendant) for damages on account of the alleged breach of a contract of employment. The parties will be referred to as they were designated in the trial court.
Plaintiff is a man about 45 years of age, a resident of Williams County, North Dakota, and, according to his own testimony, has farmed practically all of his life and is familiar with wheat farming, knows [171]*171the types and stages wheat goes through from the time it is planted until it is harvested. In the latter days of May 1948 he purchased a sprayer to be used with a tractor and at the same time purchased fifty gallons of spray chemical intending to spray his wheat fields. In the meantime he heard from his neighbors about airplane spraying and due to the fact that it was getting late in the year and he was unable to use his own sprayer he says: “He went to Grenora for a sprayer on the 7th of June”. He there consulted the manager of the Farmers Elevator with reference to securing some one to spray his wheat by airplane. On the following day he purchased fuel to mix with the spray so that it might be used in the airplane sprayer. He testified that: “He went to Grenora a second time (June 14th) to get the pilot because he thought it was the proper time to spray his crop”. The manager of the Farmers Elevator telephoned the pilot operating defendant’s plane and apparently pursuant to this communication a Mr. Joe Drake, a pilot, landed a spraying plane on the farm of a neighbor. The plane landed at about 7 o’clock in the evening of June l'5th and plaintiff and his hired man Charles Riddel drove out some three-quarters of a mile to the place where the plane had landed. Plaintiff did not take Drake over the land to be sprayed but pointed it out to him from his automobile, explaining that he did not want it all sprayed. After pointing out the land he wished sprayed he drove the pilot back to the plane and then loaded his truck with the furnace fuel and drove it to the plane and the liquid spray mixed with the fuel oil was loaded into the spraying plane. The pilot did not inspect the field nor was he asked to do so. At the time the spraying was done plaintiff’s wheat was from 6 to 10 inches high but it had not started to head out but was in the “box stage”. The plaintiff testified that “by the box stage he means first there is the little plant and the next stage is the shooting stage when it starts shooting the stem up, then it forms into a box for the head and then heads out”. There was no conversation between Drake and the plaintiff with reference to the stage, height or condition of the wheat, Joe Drake the pilot was a resident of North Carolina, he was an expert airplane pilot. He had never been a wheat farmer, knew nothing about it, did not know what stage the wheat was in at the time he sprayed it and if he had seen it he would not have known. He testified “that he sprayed the: crop when plaintiff requested it to be sprayed and he did not inspect the crop, he was not asked to inspect it”. There is no evidence that the defendant through Drake, or anyone else, made any representations with reference to any superior knowledge as to the proper time or the proper stage of growth at which spraying should be done. There was evidence from which the jury might have found the wheat was damaged because of the application of the spray at the time when it was applied. At the close of all the evidence defendant interposed a motion for a directed verdict which motion challenged the sufficiency of the evidence to prove the material allegations of plaintiff’s complaint and to prove any negligence on the part of defendant in performing his contract, if there was such a contract. The motion also challenged the sufficiency of the evidence to prove that Joe Drake was the agent of defendant. The motion was overruled and the case submitted to the jury. The jury returned a verdict in favor of plaintiff for $2,750.00 on which judgment was subsequently entered. Following the entry of judgment the defendant interposed a motion for judgment notwithstanding the verdict which the court likewise overruled and this appeal followed.
While defendant on this appeal, as in his motion for a directed verdict, contends that the evidence was insufficient to prove that Joe Drake, the pilot who operated the airplane, was defendant’s agent and also urges that the court was without jurisdiction, we find these contentions without merit and put them aside without further consideration.
In considering the question of the sufficiency of the evidence we must view the evidence in a light most favorable to the prevailing party, in this case the plaintiff. If when so considered it can be said [172]*172that there is substantial evidence then the case should have been submitted to the jury. A mere scintilla of evidence however is not sufficient. Where fairminded men may honestly draw different conclusions from the evidence, the question of liability becomes one of fact. ; Ordinarily where the evidence is undisputed and is such that fair-minded men cannot reasonably reach different conclusions or inferences, the question of liability is one of law to be determined by the court. In the instant case there is no conflict in the testimony on any material issue.
This action did not sound in tort but was an action for damages for an alleged breach of contract, it being claimed that the contract was inefficiently performed. It is therefore necessary to consider the obligations arising because of the contract between the parties, because in the obligation assumed by a party to a contract is to - be found his duty, and his failure to comply with such duty constitutes the breach. It is elementary that the cardinal rule in the construction of contracts is to determine the intent of the parties. Where the contract is in writing this must usually be determined by the words of the contract. Here there was no written contract and it' must be determined to a large extent by the surrounding circumstances, the acts of the parties and how the parties themselves construed or interpreted it. There was no claim of fraud or misrepresentation of any kind.
There were at least two methods by which these grain fields could have been sprayed. Plaintiff, prior to any contact with the defendant or his representative, planned to do his own spraying and for that purpose purchased a sprayer and also the liquid for use. As has already been recited he was a wheat farmer of many years experience, he knew all about the various stages of the growth and development of wheat.1 He was certainly relying upon his own knowledge and judgment when he was proposing to apply the spray himself. The other method of, spraying was by use of the airplane. The effect of the application of the spray was the same whether applied from an airplane or from the ground sprayer. Plaintiff testified that be abandoned his plan to spray his own fields because- “I didn’t have a tractor to hook it up”, and he then through an intermediary contacted defendant through his agent Drake. He purchased and mixed his own spray and he determined the time of its application. When Drake landed his plane on a neighbor’s farm plaintiff and his hired man went to the plane and that was the first time the parties met. He did not advise Drake as to the stage of growth of his wheat, which confessedly he knew. Drake was a mechanic, not a chemist, a botanist nor an agronomist. He gave no advice, made no representations to plaintiff with reference to the proper time for spraying and plaintiff asked no questions touching that subject. He simply expedited the process of spraying by substituting an airplane sprayer for the tractor propelled sprayer. Manifestly plaintiff was not induced to invite Drake to spray his field at the time he did by any act or representation of Drake. Plaintiff not only did not ask Drake to inspect the field, but in fact he gave him no opportunity to do so and he knew that Drake did not know the stage of the wheat. He drove Drake out in an automobile far enough so that he could point out the field or fields which he desired sprayed. This certainly did not indicate that plaintiff was relying upon Drake’s judgment as to when the spraying should be done and we think it clear that Drake had a right to assume that 'plaintiff knew when this spraying could be safely done. Not only is there nothing to indicate that plaintiff was relying upon Drake’s [173]*173judgment on this matter, but the attending circumstances and acts of the parties show conclusively that he was relying upon his own judgment. There is nothing whatever to indicate that plaintiff thought this any part of the defendant’s duty under the contract of employment. The action of the parties during the time of the performance of this contract indicated what they thought of its scope and meaning and their conduct is of great, if not controlling, influence in ascertaining their understanding of the scope and terms of the contract. It may generally be assumed, in the absence of fraud or misrepresentation, that parties to a contract know best what was meant by its terms and they are the least likely to be mistaken as to its intention, and whatever is done by the parties during the period of performance of the contract is presumed to be done under the terms of the contract as they understood and intended it to be. In the article on Contracts, 12 Am.Jur. section 249, the author among other things says: “ * * * Parties are far less likely to have been mistaken as to the meaning of their contract during the period when they are in harmony and practical interpretation reflects that meaning, than when subsequent differences have impelled them to resort to law and one of them then seeks an interpretation at variance with their practical interpretation of its provisions * *
To the same effect see: Thomson v. Thomson, 8 Cir., 156 F.2d 581, 586, and Craig v. Thompson, 8 Cir., 177 F.2d 457, 460.
In Thomson v. Thomson, supra, we said: “In determining the scope or meaning of the contract, the interpretation placed upon it by the parties themselves is entitled to great if not controlling influence.”
In Craig v. Thompson, supra, it is said: “Since appellants now contend that compensation for overhaul was payable monthly their conduct in connection with' its performance is important. It has long been the law that ‘Where the parties proceed in the performance of the contract as though it had a certain meaning and that meaning is not entirely inconsistent with the wording of the contract, it should prevail,” (Citing authorities.)
The evidence, as we have said, is not in dispute. The parties by their contract, as made, interpreted and carried out by them, did not impose upon defendant the duty of determining and advising plaintiff when his grain should be sprayed. Plaintiff alone knew the stage of development or growth of his wheat and he, and he alone, determined the time it was sprayed, and the only complaint was that defendant sprayed the wheat at the wrong time. Apparently wheat fields in that vicinity were then generally being sprayed. The elementary principle that one may not make his own voluntary act or conduct the ground of recovering damages from another is expressed in the maxim “volenti non fit injuria”. We think there was not a scintilla of evidence sustaining the contention that defendant was responsible for the time at which the. spraying was done.
We conclude that the Court should have granted defendant’s motion for &■ directed verdict and, having failed so to do, should have granted his motion for judgment in accordance with his motion for a directed verdict.
The judgment appealed from is therefore reversed and the cause remanded with direction to enter judgment dismissing the action.