
    G. F. Reinking v. W. S. Goodell and F. W. Goodell, Appellants.
    1 Negotiable Instruments:, taxation of attorney fees. Where promissory notes were executed at different' times and for different amounts, which provided for attorney fees in case of suit, the holder was entitled to have the attorney fees taxed on the notes as separate instruments, although sued in the same action. •
    2 Landlord and Tenant: lease: construction. Under a lease of rice land providing for a stipulated rental per acre for all land covered by the lease and harvested, the land utilized for levees, consisting of narrow strips of an elevation of about six inches and dividing the tract into small, irregular areas,.for the purpose of retaining water for irrigating the land, were a part of the acreage harvested, within the meaning of the lease, and the owner was entitled to rent therefor, there being nothing in the lease to the contrary.
    3 Same: action for rent: counterclaim: evidence. In this action for rent, in which the tenant counterclaimed for breach of contract by the landlord to make repairs, correspondence between agents of the owner concerning the material and character of the plan for repairs, which correspondence was commenced before the signing of the lease, and correspondence of one of the owners agents with other parties concerning the difficulty in procuring the necessary material for the repairs, was admissible, even though the owner was not bound by the terms of the lease to make the repairs within a definite time, but only within a reasonable time.
    4 Same. Where a lease did not require the landlord to make certain re-pairs within any definite time, conversations between the tenant and the landlords agent, which were had before the lease was made, as to the necessity of making the repairs before a certain date, were not admissible in an action for rent in which the tenant counterclaimed for failure to make the repairs within the required time; as it added a new condition to the lease.
    5 Same: covenant to repair: breach: liability. The lease in the instant case of irrigated lands, providing for the making of certain repairs to the irrigating plant, is held to contain no covenant to complete the repairs by any fixed time; and therefore the rule that the covenanting party assumes the risk of injury resulting from his failure to complete his contract has no application.
    6 Same: instructions: prejudice. Where there was no evidence that the party employed to repair the plant was negligent in prosecuting the work after the material was secured, any error in the instructions assuming that he was the party selected by both the landlord and tenant to make the repairs was not prejudicial.
    7 Same: covenant to repair: breach: evidence. Where the -con-troverted question was whether the repairs were made within a reasonable time under the circumstances known to both the landlord and tenant, evidence that the tenant made no complaint that the work was not so completed, until after the crop had matured and until expiration of the lease, was admissible, as well as evidence of the repairs that were in fact made.
    8 Same: covenant to p.epajr: breach: damages. Where one is threat-ened with injury, the result of the default of another, he must prevent such damage if he can do so with reasonable diligence and at slight expense. So where a landlord proceeded to make certain repairs required by his lease, and in a general way made such repairs within a reasonable time, upon his failure to complete some matter in connection therewith not specifically called for by the lease, and of which the tenant himself knew and could have remedied with reasonable diligence and slight expense, it was his duty to do so; and failing to perform such duty he was in no position to recover of the landlord the full damage suffered by reason of such negleet.
    9 Same: evidence: prejudice. Where no substantial damages were allowed in an action for rent, to which the tenant counterclaimed for damages because of failure of the landlord to make repairs within a reasonable time, the rulings as to the admission of evidence which could only have affected the measure of recovery and not the right, were not prejudicial even if erroneous.
    
      Appeal from Polk District Court. — Hon. Hugh Brennan, Judge.
    
      Wednesday, December 13, 1911.
    Action to recover the agreed rental on a tract of rice land in Texas and the amount due on two promissory notes for money advanced by plaintiff to defendants. There was a counterclaim for breach of contract on the part of plaintiff in failing to repair a pumping plant on the premises and the retaining walls protecting the same, resulting in damages to the defendants in the loss of a portion of the crop and loss of time, labor, and money in preparing and procuring seed for such crop'. The case was tried to a jury, and a verdict was returned for plaintiff in the sum of $9,704.56, which was substantially the full amount claimed by plaintiff.
    
    Affirmed.
    
      Guernsey, Parker & Miller, for appellants.
    
      Hunn & Jones, for appellee.
   McClain, J.

The appellants question not only the action of the court and jury resulting in the substantial disallowance of defendants’ counterclaim, but also in two respects the amount of recovery allowed on plaintiff’s claim.

The facts necessary to an understanding of the questions involved in the determination of the appeal, as shown without dispute in the record, were as follows: Plaintiff, being the owner of a tract of rice land of about 1,200 acres located adjacent to the town of Garwood in Texas, and abutting upon the Colorado river, on the 31st day of December, 1907, leased said land including the use of the pumping plant consisting of the machinery, flume, canals, and laterals then constructed and certain buildings which need not here be described, to the defendants for the year 1908 at the agreed rental of $5 per acre for all lands covered by the lease and harvested; the acreage to be determined by a survey made at or about the time the crop was harvested therefrom. Plaintiff agreed in said lease to loan the defendants money not to exceed $5,000 in amount to be used by them in tbe operation of tbe plant and raising of the crop. It is agreed tbat under tbe stipulation for advances money was loaned to tbe defendants represented by two certain promissory notes executed at different dates in tbe sums of $2,500 and $1;000, respectively. It appears tbat at tbe time of entering into said contract of lease tbe pumping plant and appliances were understood by ■both parties to be out of repair, and it was further understood tbat tbe plant needed additional protection against tbe possible encroachments of tbe river at times of high water, and tbat repairs and improvements were contemplated by plaintiff to be made according to plans already submitted to plaintiff by one C.- G. Patton, an engineer. Tbe plaintiff therefore covenanted in tbe lease “to build a protection to tbe bank by G. G. Patton, who is to put tbe same in and repair tbe boiler walls (and) to repair tbe pump and rebore tbe pulley on tbe shaft. ’ ’ It further appears tbat tbe pumping of water on tbe land by means of tbe pumping plant was essential to tbe raising of a crop of rice, and tbat water was usually necessary about four weeks after tbe rice was planted; tbe period of planting extending from tbe latter part of March until tbe first of June, depending upon tbe circumstances and tbe season. Tbe first planting was in fact done March 29th, and prior to April 20th tbe boiler walls had been rebuilt and tbe machinery put in running order under tbe supervision of one of tbe defendants. "Work on tbe additional protecting walls to guard the suction pipe of tbe pumping plant, a twenty-four-incb pipe projecting beyond tbe river bank about fifteen feet, was commenced by Patton in February. On account of lack of material to finish it, this work was suspended tbe last of March and resumed tbe middle of April; but tbe completion of tbe work was delayed by successive floods in tbe river until after tbe 5th of May. By tbe 20th of tbat month tbe suction pipe, which during the progress of tbe work of repair was found to have sagged and opened, was repaired and connected and pumping commenced. On account of tbe high water, there was a suspension of pumping after this date; but the protecting walls stood, and it does not appear that the bank was washed out by the water. The alleged damage on which the counterclaim is based consisted in the shortage of the crop on the leased premises, due to the failure of the pumping plant to supply water for about one month following the 20th of April. It appears that defendants sublet the lands to tenants for raising rice for one-half the crop, defendants furnishing the seed, and the. testimony relating to the measure of damages on the counterclaim was as to the expense of seed for which defendants secured no return and the shortage in their half of the crop on land on which rice was in fact raised.

I. In each of the two notes sued upon there was the usual provision for attorney fees. The court allowed the statutory fee as to each note, whereas if the attorney fee ^ad been compnted on the basis of a total recovery as upon one note it would have been iegSj an¿ jn tliis respect error is assigned. The notes were executed at different dates and for distinct sums of money advanced to the defendants. Under such circumstances, plaintiff, although asking recovery on these notes in .one action, was entitled to have attorney fees computed on the two notes as though suits thereon had been separately brought. Bankers’ Iowa State Bank v. Jordan, 111 Iowa, 324; Hannasch v. Hoyt, 127 Iowa, 232.

II. As to the acreage on which rent should be paid it was stipulated that the amount of land exclusive of levees on which rice was raised was 1,045 acres, and that fifty acres should be added to that amount if the levees .... , , ,, , , , on which nee was not actually harvested were . to be included. It appears that the levees referred to are narrow strips of land thrown up by the plow to an elevation of not exceeding six inches inclosing the land in small areas of irregular shape for the purpose of retaining the water pumped upon the land for irrigation. These levees are essential to tbe raising of crops on irrigated rice land. The court held that as a matter of law the fifty acres occupied by the levees were a part of the acreage harvested within the meaning of the contract and for which defendants should pay rent, and this holding we think was correct. The levees were a part of the cultivated land on which a crop was actually raised, although no grain was actually grown thereon.- The land of which the levees formed a part was “harvested,” and we find nothing in the lease that would justify the exclusion from the computation of acreage of these narrow strips.

III. As bearing on the question of plaintiff’s diligence in prosecuting the work of making repairs, the court received in evidence various letters constituting portions of the eorrespondenee between plaintiff’s agent, charged procuring the material with which the engineer Patton was to make the repairs, and said Patton himself, and other letters written by the same agent to other persons and the answers thereto relating to the procuring and shipment of such materials. Under the theory on which the court submitted the case to the jury, this correspondence was, we think, material. The correspondence with Patton commenced before the signing of the lease and indicates the formation and character of .the plan mentioned in the lease with reference to which these repairs were to be made. The correspondence between the agent and others simply indicates the difficulty which the agent experienced in procuring the material necessary for the work. The general contention of the appellants is, in this respect, that due diligence is not to be measured by the efforts of agents to induce each other to perform their respective duties. But this objection does not apply to the letters between the agent and those who were solicited to furnish the materials or the transportation thereof, for such persons were not the agents of plaintiff. We find nothing in this evidence which should not have been admitted if the theory on which the case was tried is correct.

IY. It is contended, however, that the contract of lease imposed upon the plaintiff an absolute obligation to have the machinery in repair and working order by the time it was needed for pumping water upon the land, and although time was not expressly made of the essence of the contract, nevertheless the effect of the stipulation in the contract, in view of the circumstances and purposes which the parties had in mind, must be construed in effect as making time of the essence. Appellants attempted further to emphasize the contemplated necessity of having the machinery in working order not later than April 20th by offering in evidence conversations between plaintiff’s agent and the defendants prior to the making of the lease in which this necessity was referred to. This offered evidence was properly excluded for the reason that it tended to vary the terms of the contract by adding thereto an undertaking on the plaintiff’s part not embodied in the instrument as written. If the parties had intended to stipulate for a specific time, it must be presumed they would have done so, and the failure to do so not only rendered the proffered evidence incompetent, but it also threw light on the intention of the parties to be drawn from facts and circumstances surrounding the execution of the contract. The difficulty of restoring the retaining walls and putting in piling necessary to protect the suction pipe in view of the floods in the river which might have been anticipated were apparent to both parties. In fact, all the work was done by April 20th except the restoration of the suction pipe, a repair not expressly mentioned in the written lease.

Now, considering all these circumstances, we think the court properly left it to the jury to say whether the work was done within a reasonable time and did not suggest any matters for their consideration which did not properly bear upon the question of reasonable diligence in its execution.

We cannot construe the language of the lease as amounting to a covenant to complete the repairs necessary to put the pumping plant in working order by a fixed time, and there-^ore there was no occasion to apply the rule that the covenanting party assumes the risk 0f ¿amage which may result from his failure to complete his contract by a time specified.

As there seems to have been no negligence on the part of Patton in prosecuting the work after the material was secured, in view of the conditions under which the work had to be done, we think a suggestion in the instructions that Patton was the person selected by both parties to construct the protection to the river bank as outlined and planned by him was without possible prejudice, even if erroneous, and we must refrain from further discussion of that question.

In view of the fact that the real controversy was as to whether the repairs were made within a reasonable time under the circumstances which were within the knowledge and con-templation of the parties, we think it was not error admit evidence tending to show that defendants made no complaint that the work was not completed within a reasonable time until long after the maturing of the crop and at the end of the term of the lease when demand was made by plaintiff for the payment of rent. For the same reason, it was not' improper to admit evidence in general as to what was in fact done. The circumstances attending the prosecution of the work were so closely connected with each other that plaintiff was properly allowed considerable liberty in the introduction of evidence bearing upon the entire subject-matter. There seems to have been no reason for the court to anticipate that evidence proper as bearing on the issues in the case would be misconstrued by the jury as tending to make an unfavorable showing for defendant in regard to some collateral matter which was not in issue, and there was no occasion, so far as we can see, for any limiting or warning instruction in this respect.

Y. In one of the instructions the jury was told that if plaintiff failed within a reasonable time to make the repairs required by the lease, and damage resulted therefrom to defendants which might have been prevented by reasonable diligence and expense on their part, there could be no recovery for damages which could thus have been prevented in the exercise of reasonable diligence and exertion and by the incurring of reasonable expense. An objection is made to this instruction on the ground that, where a landlord covenants to make repairs, the tenant may rely upon such covenant and recover in general for the depreciation in the rental value due to'the landlord’s default. But such a rule does not apply to this case. The plaintiff did proceed to make the repairs, and it is not seriously questioned that in general they were made within a reasonable time. As we understand the record, the sole difficulty was as to failure to get the suction pipe in place so that it might be used in pumping water upon the land. The repair of the suction pipe was not specifically mentioned in the lease. If now the defendants might at small expense and in the exercise of reasonable diligence have put this pipe in place and proceeded with the pumping of water, they cannot recover the damage for shortage of crop due to failure to make the pumping plant available at an earlier period. If the landlord, having covenanted to repair a roof, proceeds to make the repairs as stipulated, but nevertheless leaves the roof in some respect defective to the knowledge of the tenant, and it is practicable for the tenant with reasonable diligence and at small expense to obviate damage from that cause, he is bound to do so and cannot recover damages, for instance, to a stock of goods contained in the building by reason of the defect in the roof which he might thus have easily prevented. Cook v. Soule, 56 N. Y. 420; Gavan v. Norcross, 117 Ga. 356 (43 S. E. 771); Cantrell v. Fowler, 32 S. C. 589 (10 S. E. 934).

We have frequently recognized the rule that one who is threatened with damage as the result of the default of another must prevent such damage if he can do so with reasonable diligence and at slight expense. Keirnan v. Heaton, 69 Iowa, 136; Raridan v. Central Iowa R. Co., 69 Iowa, 527; Agne v. Seitsinger, 104 Iowa, 482; McKenna v. Baessler, 86 Iowa, 197; Wissler v. Atlantic, 123 Iowa, 11; Wood v. Ravenscroft, 135 Iowa, 346.

Friday, October 24, 1913.

This proposition was particularly applicable to the case before us, for it was made to appear in the evidence that defendants had been allowed to retain a considerable sum of money due plaintiff for rent of the premises for the preceding year to apply on the expense of making repairs.

VI. As no substantial damage was allowed to defendants for shortage of the crop due to the failure to make repairs within a reasonable time, rulings of the court as to the admission of evidence which- might have affected only the measure of recovery and having no bearing on the right to recover, even if erroneous, were so clearly without prejudice that any further discussion is unnecessary.

¥e reach the conclusion, therefore, that the judgment should be, and it is Affirmed.

Ladd, J., takes no part.

SUPPLEMENTAL OPINION.

Per Curiam.

A rehearing was granted in this case. The record has been re-examined with care, and considered by the full bench, except Justice Ladd, who did not sit. The opinion heretofore filed on December 13, 1911, is adhered to, and it is reinstated as the opinion in the ease. — Affirmed.  