JOHN REEDY and JOHN BIXBY v. J. WESLEY SMITH, WALTER L. SMITH, HOSEA E. DUDLEY, and R. CONRAD, 42 Cal. 245

By the Court, Temple, J.: 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 circumstance's 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. Eor 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 he ascertained by the ordinary rules upon the subject.

Judgment reversed, and cause remanded for a new trial. Mr. Justice Crockett did not participate in the foregoing decision.