Cherry v. Watson ( 1922 )

KENNAMER, J.

W. A. Watson, plaintiff, instituted this action before E. B Moore, justice of the peace for the town of Davenport, Lincoln county, Okla., against J. W. Cherry, defendant, to recover $46 for drilling Cherry a water well. Watson alleged in his bill of particulars that he drilled the well at the instance and request of Cherry, and that no price was agreed upon for the work, but that he drilled the well to a depth of 36 feet and set 20 feet of steel casing in order to ease off quicksand, and that the reasonable price for the completion of the well was $46.

On the 27th day of September, 1918, the justice court entered judgment for the plaintiff in the sum of $36. Cherry, the defendant, appealed the case to the county court. The cause was tried on March 22, 1919, tn the county court to a jury, which resulted in the verdict for the plaintiff in the sum of $38.80. Motion for judgment, notwithstanding the verdict of the jury, was filed by the defendant, which was overruled. (Motion for new trial was filed and overruled, and judgment entered on the verdict of the jury. This appeal is prosecuted by the defendant, Cherry, to reverse the judgment of the trial court.

Counsel have argued the following propositions for reversal of the judgment. The court erred in overruling motion for new trial. The verdict of the jury is excessive in the amount found to be due. That there is not sufficient evidence to warrant a recovery for any amount for setting the steel casing. The court erred in overruling the defendant’s demurrer to the evidence of the plaintiff.

We have examined the testimony in the record and the instructions of the court. It is clear that the case was tried and submitted to the jury under proper instructions on the theory as contended for by the plaintiff — that he drilled the well at the request of the defendant, and that no price for the work was agreed upon, and that $46 was a reasonable price for the drilling of the well; and .upon the theory of the defendant — that the work was performed under an express contract, that the plaintiff was to drill the well for 80 cents per foot. These respective theories were submitted to the jury under proper instructions. The jury found the issues in favor of the plaintiff and fixed the amount of recovery at what was found to he a reasonable price, to wit, $38.80 for the work performed.

There appearing no reversible error in the record, the judgment of the trial court is affirmed.

HARRISON, O. J., and KANE, JOHNSON, MILLER, NICHOLSON, and COCHRAN, JJ., concur. •