The only error urged in the court below or noticed in its
opinion, and which, consequently, can be considered here, goes to
the insufficiency of the proof of the contract set up in the
complaint, in which this Court finds no error.
Page 164 U. S. 262
This was an action originally brought in the District Court for
the Third Judicial District of the Territory of Utah by the Societe
Anonyme des Mines de Lexington, a French corporation, against the
Old Jordan Mining & Milling Company to recover one-half the
expense of certain repairs made to a canal or water ditch owned by
them in common.
The complaint alleged that since the month of March, 1883, these
parties had continuously been tenants in common, owning an equal,
undivided interest in a certain canal known sometimes as the
"Galena," sometimes as the "Old Telegraph Canal," and sometimes the
"Old Jordan Canal," together with the right of way and adjacent
lands. That between the 22d of October, 1883, and November 5, 1883,
they entered into a contract in writing in which it was agreed that
they would make repairs, etc., and that each should pay one-half of
the expense thereof. That in the year 1884, the plaintiff made
certain repairs of the value of $993.93, in 1885 of the value of
$4,025; in 1886 and until June, 1887, $4,826.95, and in 1887, from
June 30th to December 31st, $500 -- aggregating $10,345.88, for its
share of which a statement or bill of items was furnished to the
defendant. That the said defendant, on the 31st of December, 1884,
paid to plaintiff $496.96, its half of the amount expended in 1884,
but failed to pay its half of the other expenses incurred as
aforesaid, leaving a balance due of $4,675.98, for which judgment
was demanded.
An answer was filed specifically denying the several averments
of the complaint, and subsequently an amendment was made alleging
that from the 1st of January, 1885, plaintiff had appropriated to
its own use, without defendant's consent, all the water flowing
through said ditch or canal, and that the reasonable value of that
portion of the said water owned by defendant was $10 per day. The
answer also made other allegations not necessary to be considered
as the case was presented to this Court.
In support of the contract alleged in the complaint, plaintiff
put in evidence the following letter, written by its manager to the
manager of the defendant under date of October 24, 1883:
Page 164 U. S. 263
"Dear Sir: During my present stay in this city for the purpose
of investigating and inspecting our different pieces of property in
this territory, my attention was particularly called to the bad
state of the Jordan water ditch, which your and our companies own
jointly. Considering that it is for our mutual interest to see that
this property should be kept in proper shape, I beg you, in the
name of your company, if you do not judge that it would be
advisable, while I am here, to have an understanding regarding this
matter. I suggest that the necessary repairs should be done at
once, and that hereafter the ditch should be kept in good
condition, both companies paying their share of the incurred
expenses."
"Will you please be kind enough to give this matter your prompt
attention, and favor us with an immediate reply, as I shall remain
here only until the 15th of November."
To this letter the defendant's manager made the following
reply:
"Cleveland, O., Oct. 30th, 1883"
"Mons. Eng. Renevey, l'administrateur delegue de Societe des
Mines de Lexington:"
"Your letter of 24th inst., in regard to the necessity of
entering into some arrangement for repairing and preserving the
Jordan water canal, owned by your company and the one I represent,
is rec'd. I agree with you that it is for our mutual interest that
this property should be kept in good order, and I shall be pleased
to join you in a reasonable arrangement for the purpose of
protecting the property from decay, and I am very glad to find a
gentleman willing to cooperate in a business way for the protection
of our mutual interests. Your suggestion that the needed repairs
should be done at once, and that each company pay its share of
expense, and also for care for the future, is right, and I will
direct Mr. Van Deusen, our engineer, to cooperate with you, or any
one you may delegate, to examine the property and report what
repairs are necessary, and the cost of the same. He is a very
trustworthy and capable man, and I think you will find it for our
mutual advantage to act under his judgment, and let him
Page 164 U. S. 264
make the repairs. As neither of us is using the water at
present, I would think it best to expend only so much as is
necessary to prevent loss, and then, when we are ready to use the
water, then we make permanent improvements. If you do not have time
to go into details before you leave, will you please leave the
matter in the hands of someone who will cooperate with me and Mr.
Van Deusen, unless you are willing to have him do it and each
company pay one-half the expense."
"I make this suggestion because I think Mr. Van Deusen can do
the work satisfactory to both."
"Regretting that my absence from Salt Lake prevents me from a
personal consultation with you, I am."
Other correspondence and evidence were introduced, which are
fully set forth in the opinion of the court.
The case was tried before a jury, and a verdict rendered in
favor of the plaintiff for the sum of $6,028.76, upon which a
remittitur was filed of $12.35, and judgment thereupon entered in
the sum of $6,016.41.
Upon appeal to the supreme court of the territory, this judgment
was affirmed. 9 Utah 483. Whereupon defendant sued out a writ of
error from this Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
1. As the only error urged in the court below, or noticed in its
opinion, turns upon the alleged insufficiency of the proof of the
contract set up in the complaint, we shall confine our
consideration of the case to that point, notwithstanding that other
errors are assigned in this Court, and, to some extent, noticed in
the brief of the plaintiff in error. We have repeatedly held that
the failure to present and insist upon errors
Page 164 U. S. 265
assigned in the court below constitutes an abandonment or waiver
of all the errors so assigned not vital to the question of
jurisdiction or the foundation of the right, and this Court can
only be called upon to consider such assignments as are pressed
upon the attention, or noticed in the opinion of the court below.
If the action of the court below were correct as to the errors
insisted upon as ground for reversal, none others will be
considered here.
Montana Railway Co. v. Warren,
137 U. S. 351;
San Pedro &c. Co. v. United States, 146
U. S. 136.
2. From a perusal of the correspondence set forth in the
statement of facts, it will appear that plaintiff's introductory
letter contained the following propositions: (1) that the company
should come to an understanding with regard to the keeping of the
ditch "in proper shape,"(2) that the necessary repairs should be
done at once, (3) that thereafter the ditch should be kept in good
condition, (4) that both companies should pay their share of
expenses.
In its reply, the defendant agreed (1) that it was for their
mutual interest that the property should be kept in good order, and
that it would be pleased to join the plaintiff in any reasonable
arrangement for the purpose of protecting it from decay; (2) that
it approved of plaintiff's suggestion that the needed repairs
should be done at once; that each company should pay its share of
expenses, and also for its care in the future; (3) that it would
direct Mr. Van Deusen, its engineer, to cooperate with the
plaintiff, or anyone that plaintiff's manager might delegate, to
examine the property, and report what repairs were necessary, and
the cost of the same; (4) that, as neither party was using the
water at present, the writer thought it best to expend only so much
as would prevent loss, and that when they were ready to use the
water, they would make permanent improvements; that plaintiff
should leave the matter in the hands of someone who would cooperate
with the writer of the letter and Mr. Van Deusen unless plaintiff
were willing to have Mr. Van Deusen do it, and each pay one-half
the expense.
Conceding for the purposes of the case that this
correspondence,
Page 164 U. S. 266
standing alone, did not contain a completed understanding for
the repair of the property -- at least beyond such repairs as were
immediately necessary -- it evidently was of such a character as to
lead the plaintiff to believe that any arrangement it might make
with Van Deusen, the engineer, for such repairs as were necessary
to prevent loss to the property would be respected by the
company.
Upon the receipt of defendant's answer, plaintiff proceeded to
make certain repairs, and on September 24, 1884, addressed a letter
to Van Deusen stating that the expenses upon the canal for the
eight months immediately preceding amounted to $643.85 (giving the
items), and requesting him to remit one-half the amount. There was
also evidence tending to show that the repairs had been made after
a visit to the canal by Van Deusen and Lavagnino, an agent of the
plaintiff company, when Van Deusen asked the latter to report to
him what he thought would be necessary to be done, and that they
agreed upon the work; that, after receiving the letter of September
24, 1884, Van Deusen said that Mr. Holden, the manager of the
company, would be there pretty soon; that he was acting under
Holden's instructions, and that it would be best to wait until he
came. On December 14, 1884, plaintiff wrote to Holden, the manager
of the company, stating that the total expenditure for the year had
been $993.93, and that the officers of his company desired to ask
his cooperation "towards making, next spring, substantial repairs
on the canal, so as to bring it up to usefulness," and also
"towards making all titles about the canal clear, and to proceed
against trespassers." On December 31, defendant paid one-half of
the bill for that year, but made no comments upon the propositions
contained in the plaintiff's letter.
There was also evidence tending to show that, in the spring of
1885, Mr. Lavagnino examined the canal with Mr. Van Deusen in order
to ascertain what repairs were absolutely necessary and urgent. As
Mr. Lavagnino says:
"We made an estimate. He told me that he would send the estimate
to his company, and I would send the same estimate to my company. .
. . These estimates were made because we
Page 164 U. S. 267
were waiting for Mr. Holden. Mr. Van Deusen said that, according
to the instructions he had last year, he would have no objection,
but that I remembered what Mr. Holden said last year, that he paid
the bill, and that he didn't care to take any responsibility, but
he would let Mr. Holden do it himself. . . . He was telling me all
the time that he would be here very soon. This conversation was in
the latter part of march, 1885."
On August 27, 1885, Lavagnino addressed Holden a note calling
his attention to the canal, stating that in the spring he had Van
Deusen with him along the canal to see what repairs were
indispensable, in order to risk a little water in it, and to
prevent a total ruin of it; that the expenses run at about $2,000
-- and saying that he would be able to present him a statement, and
hoped that he would approve the same in behalf of the defendant. He
also expressed the wish that he would like to have Mr. Holden
inspect the canal, to satisfy himself that he had done the
most-needed things for its protection, and to get his opinion
"about the probable expenses for keeping up the canal to even
its present low condition, and to define in a sure way how far you
think it right for the Old Jordan company to stand the French
company by."
On September 1, he sent him a statement of what he had paid
during the last six months, amounting to $2,204.23, and asking for
its proper contribution from the Old Jordan Company.
Here, at least, was a distinct and unequivocal notice that
repairs had been made, and that the plaintiff looked to defendant
for a proportion of the cost. In view of their previous
correspondence, defendant could have had no doubt that such repairs
were made upon the faith of the letters that had passed between
them, and if it did not intend to be bound, it was its duty to
repudiate the bill at once and give notice that the repairs were
unauthorized. Instead of this, however, Mr. Holden, on September 2,
promptly acknowledged the receipt of the statement, said that the
owners were expected early in the month and desired them to examine
the canal with him and decide the matter, both for the present and
for future expenditures, and suggesting that, as tenants
Page 164 U. S. 268
in common, it was best for them "to agree upon some line of
policy by which either party should be allowed to expend money on
the property, and thus bind the other to payments."
On November 19, he wrote to him again, desiring him to make a
complete statement of the expenditures made during the last year
which had been necessary for the protection of the canal, and send
them to him at Cleveland. He said that the owners had been opposed
to spending any more money than was absolutely necessary for the
protection of the canal, that when the Jordan Company was ready to
use it, they would make improvements and repairs, and that he was
quite certain the company would be disposed to do whatever was
equitable.
On February 10, 1886, Lavagnino addressed a letter to Mr. Holden
at Cleveland, enclosing a statement of the total expenditures upon
the canal during 1885, which amounted to $4,025, stating that most
of these expenditures had been necessary for the protection of the
canal and that the expenditures were either evidently indispensable
or were considered as necessary by Mr. Van Deusen and himself.
To this Mr. Holden replied on February 16th, stating that he was
pleased with the fair and candid statement made with regard to the
expenditures; that he would submit them to the board for
consideration, and felt sure they would be acted upon in an
equitable manner. The letter further stated that the board did not
desire to spend any more money than was absolutely necessary to
protect the canal and save larger expenditures in the future; that
if they were using the water or contemplated its immediate use,
they would have no hesitation in joining in any judicious
expenditure; that
"it was the hope of the management of our company that you would
be willing to make such expenditures upon the canal as in your
judgment would seem to be best, and that you should report the same
to us from time to time, and that, when we should be ready to use
the water, that we should expend for the benefit of the canal a
like amount, or, in case we should find it at that time in such
good repair that it were not necessary to expend as much money as
you had expended,
Page 164 U. S. 269
that we should then pay to you the half of these expenditures
made by you, as indicated in your different letters up to the 10th
inst., less, of course at any time, the amounts which we should
expend upon the canal."
The next letter was not written until July 30, 1887, and in this
Mr. Lavagnino states that the expenditures upon the canal property
during the year 1886 and the first half of 1887 had been $4,826.95,
that, in his opinion, the work had been necessary for the
protection of the canal property, and that whatever value there was
in it at present was "mainly due to the perseverant attention
bestowed upon it during the last four years," and that he was
willing to settle by arbitration any difference between them. He
also gave a list of all the expenses put upon the canal as common
property, which amounted to $10,745.88, and asked him to settle for
his share of the expenses.
A further letter was written on February 6, 1888, stating that
the expenses for the last half of 1887 had been $500.
A reply was made to this letter by Mr. Van Deusen on February
11, 1888, acknowledging the receipt of the statement of February 6,
1888, and asking him to forward him a completed statement of his
account against the Old Jordan Company, that he might report the
same to the owners, and demanded that the statements show how and
where each item of expense was applied, that they might be assured
that such application was made for the protection of the property
only.
To this Mr. Lavagnino replied under date of February 14, sending
copies of statements rendered to Mr. Holden, promising to give any
further details required, and requesting a settlement of the
account within ten days.
This letter completed the correspondence. In this connection,
the court charged the jury as follows:
"If you believe from a preponderance of the evidence that the
contract was made as alleged, as I have stated it to you, and that
the plaintiff made the repairs during the time specified, and that
the repairs were necessary to the preservation and protection of
the property, and that the defendant has been requested to pay, and
has refused, then you should find for the plaintiff the
Page 164 U. S. 270
amount of such one-half of expenditures."
It further charged that if the defendant were liable under the
contract, it was liable only for the reasonable and necessary
expenditures to preserve and protect the property, and that such
expenditures must have been made for the benefit of the common
interest of both parties to preserve and protect them.
We see no reason to doubt that the case was properly submitted
to the jury. In determining whether there was a binding contract
between the parties arising from the letter of the plaintiff of
October 24, 1883, and the answer of the defendant thereto, the jury
were at liberty to consider, in connection with those letters, the
subsequent correspondence and the conduct of the parties in respect
to the common property, and the interpretation put upon them by the
parties themselves. Not only was the canal visited and examined by
the agents of both parties acting in concert, but from the
beginning to the end of the correspondence, there was no refusal to
cooperate on the part of defendant, no disavowal of an agreement
between them, nor any expression of dissent as to the propriety of
what had been done towards the preservation of the property. It is
true that the defendant was not making use of the canal, but its
preservation from ruin was an object of as much importance to one
party as to the other. The conduct and letters of the defendant
were such as to justify the plaintiff in believing that the repairs
that it was making to the canal were assented to and approved of by
it, and it was at least a question for the jury to say whether the
plaintiff was not justified in believing that the defendant would
pay its proportion of them and whether the two first letters were
not treated by both as embodying the arrangement between them.
We see no error in the record of which the defendant is entitled
to complain, and the judgment of the court below is therefore
Affirmed.
MR. JUSTICE PECKHAM was not present at the argument, and took no
part in the decision of this case.
