Tapper v. Idaho Irrigation Co.

ON REHEARING.

RICE, C. J.

There can be no doubt that an aetion for damages to crops, because of failure to deliver water during the years in which the construction company retained control of the operating company, will lie, since during those years the construction company bound itself to deliver water in such quantity as the condition of the crops and the weather might determine. (Hanes v. Idaho Irr. Co., 21 Ida. 512, 122 Pac. 859.) I think, however, that the principle that the performance of the contract was based upon the continued existence of the subject matter is at least partially…