On Application foe Reheaeing.
Blanchaed, J.The answer filed in this case is not viewed as setting up a special defense in conflict, or inconsistent with, the general issue pleaded.
Defendant in this answer “pleads the general issue and denies each and every allegation in plaintiff’s petition contained, and alleges that Amos G. Oarr, plaintiff herein, set out to make and did make a 'providence crop’ of rice upon the land he rented from Jas. R. Webster during the year 1898, and said Oarr refused to take water from the defendant company.”
There is here (1) a general denial of the averments of plaintiff’s petition; (2)' in aid of this general denial is the allegation that plaintiff relied upon Providence — i. e., precipitation from the clouds — for water to make his crop; and (3) so relying, he refused to take water from defendant company in the sense that he failed to make timely contract for water — delayed signing the contract until the damage or most of it had been done.
This by no means is to be regarded as a special defense admitting the verbal contract alleged by plaintiff to have been made in the early part of the year, and then seeking to avoid same by averments of plaintiff’s refusal to take water under the contract. It is not a plea of confession and avoidance.
On .the contrary, it is looked upon as a special denial of any such contract.
This left it incumbent on plaintiff to prove the verbal contract and he failed to substantiate the allegations of his petition in this regard. The preponderance of evidence is the other way.
The only contract sufficiently established to have been made is the written agreement of August 2, 1898. This document, which plaintiff avers embodied and was intended to embody the earlier verbal contract, fails entirely to refer to, or in any way to mention the alleged antecedent verbal contract. On the contrary, the obligation assumed by defendant company in this written contract is, clearly, one in presentí —to,,begin only from that date, for the language is: “said company hereby agrees to furnish water for proper irrigation of a rice crop,” etc.
*245Erom that day only, so far as this contract is concerned, was there obligation on the part of defendant company to supply water. And the weight of the testimony is that after signing the contract the plaintiff refused to avail himself of his water privileges thereunder — declined to take water. Following the signing there were some heavy rains and plaintiff seems to have trusted to these for a sufficiency of water.
The truth is the real damage to plaintiff’s rice crop had been incurred prior to the signing of the contract of August 2, 1898.
By far the greater loss he sustained was inflicted in July. He had relied upon the seasons and they were propitious in May and June, but failed him in July. The weather became dry in that month and a large portion iof his crop greatly deteriorated, became practically worthless.
The evidence establishes that before this damage had been thus occasioned plaintiff was solicited to sign the contract — the same he signed after the damage was done — and declined.
If he intended to rely upon irrigation from defendant’s canal to meet the requirements of his rice crop he should have seasonably signed the usual or customary contract for water. He had the opportunity to do this. He was asked to do it. He neglected to do so. .
He took his chances on a “providence crop” and must abide the consequences.
There was some small damage to his remaining crop, incurred after the 2nd of August (the date when he signed the contract), which might have been averted by irrigation, but since he declined to take water as per his privileges under the contract, he must abide the loss.
Had this plaintiff signed the contract (which he afterwards signed) seasonably, he would have had a case sounding in damages against defendant. While a verbal contract or agreement for a supply of water would have been binding on the parties, such contracts are difficult to establish with certainty and it is unsafe to rely upon them.
Behearing denied.
Breaux, J., adheres to views expressed in the original opinion as relates to the averments of the answer, and concurs in the decree. Provosty, J., takes no part — this case having been submitted and decided prior to his taking his seat on this bench.