dissenting.
The trial in the District Court was before a jury, but the court instructed a verdict in favor of the plaintiff. The Court of Civil Appeals has reversed and remanded the case for a new trial upon the ground that fact issues should have been submitted to the jury. 225 S. W. 2d '441. In order to sustain her position that the District Court correctly instructed a verdict in her favor, Mrs. Hieby, who was the plaintiff in the District Court, must show that the evidence, when considered most favorably to the defendants, raised no substantial conflict on any issue material to the grounds of recovery or defense. Stevens v. Karr, 119 Texas 479, 33 S. W. 2d 725, 41 Tex. Jur. “Trial-Civil Cases,” Sec. 171.
The defendants in their answer alleged that the plaintiff had the implied obligation to properly care for and water the orchards so as to bring about a normal development and growth of the fruit; that the plaintiff breached that obligation by failing to care for and water the orchards with the result that only about one-half or less of the fruit in the orchards reached the proper size by the latter part of December, 1947, and that at least two-thirds of the fruit in the orchards was small and wholly unsuited to the purpose for which the defendants had contracted to purchase it. The. defendants further alleged that as a result of the neglect of the orchards by the plaintiff large amounts of the fruit were more severely damaged by destructive winds which struck said orchards in the latter part of November or early in December, 1947, than they would have been damaged had the trees been in good condition and properly cared for. The defendants further alleged that they entered into the contract of November 21, 1947, with the purpose of obtaining premium sized fruit for which they agreed to pay a premium price, since the defendants were in the gift package fruit business; and that the plaintiff was fully aware of these facts. The defendants pleaded that the breach of the implied obligation of the plaintiff to care for the orchards, resulting in the failure of the fruit to reach normal or full size, was a material breach of contract which released the defendants from the obligation to harvest and pay for the fruit in the plaintiff’s orchards.
The same facts substantially were alleged by the defendants as their basis for a cross-action against the plaintiff for breach *169of her contract. The defendants asserted that they had been damaged in the sum of $1,440..
The evidence on the issues of fact raised by these pleadings was sharply conflicting. However, when the evidence is considered most favorably to the defendants, as we must consider it when determining whether the District Court correctly instructed a verdict in favor of the plaintiff, the record shows that substantial evidence was offered by the defendants to sustain their contentions. Both of the individual defendants testified, and their testimony in material respects was supported by the evidence of third parties. This evidence in effect was that at the time the contract was entered into, the defendants told the plaintiff that they were in the package fruit business and they needed premium fruit; that some of the fruit had not fully developed when the contract was signed; but that with normal care the fruit would have matured before the time for harvesting expired; that shortly after the contract was signed the defendants inspected the orchards and found that they were dry and needed water; that the month of December is a critical month in the development of the fruit, and the orchards commonly need watering during that time; that the plaintiff was requested on several different occasions by the defendants to water the orchards so that the fruit would “size up” or reach a normal growth; that the plaintiff failed to comply with these requests because it would involve expense to her and she did not water the orchards until the following spring; that in December a destructive dry wind severely damaged the plaintiff’s orchards, defoliating a large portion of the trees and causing an abnormal portion of grapefruit to fall to the ground, averaging about one box per tree; that as a result of this wind and the lack of water the fruit remained small and did not develop normally and some of the fruit was soft and scarred; that orchards owned by other persons, which were properly watered, did not suffer this damage; that the defendants picked the fruit that had properly developed, but that they did not pick about two-thirds of the fruit because it had not properly developed and could not be used by them in their business; that the defendants notified the plaintiff that they could not take the remaining grapefruit because for lack of water the fruit was of no value to them; that the defendants had contracted to sell all of the fruit which they had expected to gather from the plaintiff’s orchards for a price which would have brought them a substantial profit, which they lost by reason of plaintiff’s failure to water and properly care for the orchards.
*170Much of the evidence offered by the defendants was contradicted by the plaintiff and by other witnesses she produced, who testified in effect that the plaintiff gave the orchards the proper amount of water; that the December wind did not damage the orchards materially; and that the fruit was of normal size and reached normal development. In other words, the record is such that issues of fact were presented upon which a verdict for either the plaintiff or defendants could be sustained by the evidence.
The question remains, however, whether these issues of fact were material. The District Court took the view that under the pleading and evidence, as a matter of law, there was no obligation on the seller to continue to water or otherwise care for the orchards until the time when the grapefruit could be harvested by the buyers.
The contract which has been quoted in the majority opinion does not contain any express agreement concerning the seller’s obligation to care for the orchards to see that the fruit would develop normally. If this obligation exists it must be one which is implied in fact from all other facts and circumstances shown by the record. As this court said in Danciger Oil & Refining Company of Texas v. Powell, 137 Texas 484, 154 S. W. 2d 632, 635, “covenants will be implied in fact when necessary to give effect to the actual intention of the parties as reflected by the contract or conveyance as construed in its entirety in the light of the circumstances under which it was made and the purposes sought to be accomplished thereby.”
Assuming the facts to be as pleaded and testified to by the defendants and their witnesses, an obligation should be implied in fact that the seller would, after the date of the contract, with reasonable diligence and prudence continue to water and otherwise properly care for the orchards so that the fruit would attain the size and quality which would normally be expected. Otherwise, it seems apparent that the intention of the parties would not be accomplished, but on the other hand, would be defeated. The contract discloses on its face that the buyer would be permitted a period of more than two months in which to gather the fruit and that the seller would pay the expense of harvesting. Aside from their right to enter the orchards for the purpose of gathering the fruit, the buyers were given no control over the orchards and it would follow that if the trees were to be watered and otherwise cared for this would have to be done by the seller. Regardless of whether, as a matter of law, the title to the grapefruit had passed to the buyers, the *171seller, since she remained in charge of the orchards, should be under an obligation implied in fact (assuming the defendants’ testimony to be true) to care for the orchards so that the fruit would normally develop and not be rendered unfit for the purposes for which the defendants were buying it.
The foregoing conclusion is supported by the general principles regarding implied obligations, which are set forth in the case of Danciger Oil & Refinery Company of Texas v. Powell, supra. In at least one other jurisdiction the same conclusion was reached in a case involving a similar factual situation. In Summers Fiber Company v. Walker, 33 Ky. L. 153, 109 S. W. 883, the contract provided that “the party of the first part has this day sold to the party of the second party forty-five and 21/100 net acres of hemp at $36.00 per acre.” The contract provided that the seller should haul the hemp to a place designated by the buyer, but made no express provision regarding the care of the hemp until it should be delivered to the buyer. In a suit brought by the seller, the buyer asserted damages which it claimed resulted from the careless handling of the hemp by the seller and failure to give it proper attention so that the hemp was unsuited for the purpose for which it was bought. The court held that there was an implied obligation on the part of the seller to care for the hemp in a careful and prudent manner: (109 S. W. at page 885)
“At the very outset, it may be remarked that, although the contract did not provide that the hemp should be shocked, taken care of, and stacked in a careful and prudent manner, yet it was nevertheless the duty of Walker to have done this. The contract implied that he would care for the hemp in the usual and customary manner. This was evidently contemplated by the parties, and may be considered as much a part of the contract as if expressly stipulated in it.”
No other cases have been found which contain facts closely similar to those in the case before us, but a number of cases are cited in the opinion of the Court of Civil Appeals which sustain the general proposition that in contracts involving sales of fruit and other personal property, as well as in contracts of other kinds, an obligation will be implied in fact when it is not inconsistent with the express written provisions of the contract, and when the implication is reasonably necessary to carry out the intention of the parties as shown by the written contract and all other facts and circumstances in the case. In my opinion, in this case the pleadings and evidence of the defendants presented issues of fact which should have been presented to the *172jury for their decision and should not have been decided by the trial court as a matter of law. I therefore think that the judgment of the Court of Civil Appeals, reversing and remanding the cause for a new trial, should be affirmed.
Opinion delivered May 17, 1950.
No motion for rehearing filed.