Collier v. Monger , 75 Kan. 550 ( 1907 )

The opinion of the court was delivered by

Graves, J.:

It appears quite clearly from the evidence that the plaintiff fully performed the conditions of the written contract on his part. It is admitted' by the defendant’s answer that an oral contract was made, as alleged, except that the request to hold the machinery at the well is denied. This allegation- of the petition, however, is established by the testimony. It seems, therefore, that the demurrer to the evidence should have been overruled.

The ruling of the court is justified by the defendant upon the grounds: (1) That the action was prematurely brought as' to the first cause of action, which is founded upon the written contract ; and (2) that there is a fatal variance between the pleading and the proof as to the second cause of action. ' In support of defendant’s first proposition it is argued that the written contract when properly interpreted means that the plaintiff must complete the well before he is entitled to pay for the drilling; that the well was not completed until after the action was commenced, and therefore it was prematurely brought. The language of" the contract, as it is ordinarily understood, does not seem to justify this conclusion. It simply requires the plaintiff to do a certain amount of drilling in a good and workmanlike manner.' Nothing is said about casing, packing, tubing, or anything else which indicates the completion of the well. • If this language, when used in an .oil-and-gas contract, has the significance here contended for, that fact does not appear in the evidence. No reason appears for giving it any peculiar signification.

The language used by Mr. Justice Mason in the case of Betterment Co. v. Blaes, ante, p. 69, seems quite pertinent here. In that case he said:

“This argument ignores the distinction between completing a well and drilling a well. These phrases cannot be said, as a matter of law, to mean the same thing. There was evidence in this case from which it might be found that a well was drilled but not completed, if these words are to be given their ordinary meaning, and there is nothing in the contract itself or in the undisputed facts that requires any unusual significance to be attached to them.” (Page 75.)

As we interpret this agreement, the contract price for the drilling became due and payable on October 12, 1904, when the work was completed.

We are strengthened in this conclusion by the act of the parties when they mutually agreed that plaintiff should receive extra compensation for work done after the drilling was finished. This oral contract indicates that the parties then regarded the work provided for by. the written contract at an end.

It is contended that the defendant’s answer avers a failure to complete the work, in that plaintiff did not •case out the water and had not put in the packer and tubing which were necessary to the proper completion •of the well; also, that the plaintiff in his testimony admitted these averments, which constituted the issues upon which the case was tried. This, however, amounts merely to an admission that the plaintiff neglected to do •a thing which by the provisions of his contract he was under no obligation to perform. Besides, it is not incumbent upon a plaintiff to meet all the issues made by the various pleadings in the case before he .can safely rest. When he produces some evidence tending to support the material allegations of his petition he is beyond the reach of a demurrer to his evidence. The issues made by the affirmative averments in the answer ■and the reply must be met in the later stages of the trial. If it was the duty of the plaintiff to case out the water and put in the packer and tubing, or do anything more than drill the well, such duty existed because of something outside and independent of the conditions •of the written contract, and the burden was upon the defendant to aver and prove such collateral facts. As ■against the demurrer we think the plaintiff was entitled to judgment on his first cause of action.

As to the second cause of action, under the evidence the plaintiff is also entitled to judgment, unless cut off by the variance of which the defendant complains. The petition alleges that the oral contract upon which the plaintiff seeks to recover was made with the defendant, while the proof shows that it was made with 'Martin, who was the defendant’s agent. This difference between the pleading and the proof is claimed to be a fatal variance. This much-abused plea, once a formidable obstacle in the administration of justice, has been shorn of its old-time vigor and strength, so that it is now unavailing unless really meritorious. It is confined in its application to statutory limitations, as defined in the civil code, which reads:

“No variance between the allegations in a pleading, and the proof, is to be deemed material, unless it have-actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the-court, and it must also be shown in what respect he-has been misled, and thereupon the court may order the pleading to be amended upon such terms as may be just.” (Gen. Stat. 1901, § 4567. See, also, Crane v. Ring, 48 Kan. 58, 60, 28 Pac. 1010; Railway Co. v. Green, ante, p. 504.)

In this case the defendant, after executing the written contract, placed Martin in charge of the work on the well, and then left the state and was absent until after the oral contract was made. A part of the oral agreement is admitted by him in his answer, which shows that he was advised of its existence before the-, pleadings were filed. On the trial no objections were made to the evidence because at variance with the-pleadings, but objections were made on other grounds. If the question of variance was presented to the district court at all it was in the general demurrer to the-evidence.

The objection seems to be without merit. The defendant could not have been surprised, misled or prejudiced in the slightest degree. He knew when he filed his answer to the petition that the oral contract had. been made with Martin, and also knew at that time what the averments of the petition were. Martin was agent for the defendant, with full authority to make-the contract. To sustain the demurrer would dispose-of the case upon a doubtful technicality, where the defendant is clearly liable. Such a practice cannot be encouraged. We regard the variance as immaterial. The demurrer should have been overruled.

Several cases have been cited in support of the contention of the defendant on the question of variance,. but the facts involved in them differ materially from the facts in this case; and it does not appear that they were decided where a statute similar to ours was in force, and we do not therefore regard them as authority.

The judgment is reversed, with direction to allow the motion for a new trial and proceed with the case in accordance with the views herein expressed.