
    [No. 15097.
    Department One.
    July 29, 1919.]
    Ernst Huschke, Respondent, v. Arcadia Orchards Company, Appellant.
    
    Waters and Water Courses (98)—Irrigation — Contract for Water—Performance. An irrigation company’s contract to deliver water is not breached where it was ready to deliver the water, but the owner had failed to designate any point for delivery and had not prepared his land to receive it.
    Same (102)—Damages (117)—Evidence—Sufficiency. Damages for failure to furnish water for irrigating an orchard cannot be left to speculation and conjecture, and a verdict without definite proof cannot be sustained.
    Appeal from a judgment of the superior court for Spokane county, Wright, J., entered April 8, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.
    Eeversed.
    
      Lee & Kimball, and Cullen, Lee & Matthews, for appellant.
    
      Charles Grant, for respondent.
    
      
      Reported in 182 Pac. 593.
    
   Mackintosh, J.

In Huschke v. Arcadia Orchards Co., 89 Wash. 423, 154 Pac. 800, will be found a prior decision of this case, which remanded it for a new trial. The facts are set forth in the former opinion, and it is therefore unnecessary to refer to them here. Upon the new trial, which resulted in a favorable verdict for the respondent, evidence was introduced as to what would be a reasonable time to be afforded the appellant in which to furnish the supply of water called for in the contract. Evidence was also introduced tending to show that the appellant had furnished such water at the place designated, but that respondent had made no attempt to take the water nor had he prepared his land for its reception. In Pasco Reclamation Co. v. Rankert, 73 Wash. 363, 131 Pac. 1143, we said:

“The evidence fairly shows that the only reason the water has not been delivered to the appellant is because of his failure to designate any point from which he desires to take water, and his failure to construct the necessary conduit thence to his land, as he agreed to do. The respondent can do no more than he has done until the appellant signifies where and how he desires to take the water.”

The measure of damages, as established by this court in the former appeal, was the difference between the value of the trees with water and their value without the same. The respondent introduced no definite proof of such damage, and left the jury to arrive at the amount thereof by speculation and conjecture. The entire record is such that no facts were properly submissible for the jury’s consideration, and the verdict returned by it must fall for the reason that it is without supporting evidence.

Judgment reversed.

Holcomb, O. J., Mitchell, Maih, and Tolmah, JJ., concur.  