Wilderman v. Pitts

Grreeu, P. J.

Appellee brought suit against appellants in the court below, and filed his declaration in assumpsit, containing common counts only. A plea of non-assumpsit was interposed. On this issue the cause was tried by a jury who found a verdict for plaintiff for $250. Defendant’s motion for a new trial was overruled. Judgment was entered on the verdict and this appeal was taken.

Plaintiff below claimed the right to recover under a contract with defendants that they should pay him $250 to finish for them a well that would furnish eight barrels of water a day for two days, defendants to help test the well.

The proof shows that plaintiff did not finish a well of that capacity, nor, in fact, finish a well at all; but when he quit work upon it, in August, 1885, at which time he made the only test ever made, sand would rise in the casing of the well, choke it up and prevent the flow of water, and this sand had to be removed before water could be drawn. In this condition the well was left by plaintiff, who took away his tools in September, 1885, in the meantime never coming back to resume work or make any further test of the capacity of. the well. He testified that no time was fixed for the completion of the work, and that in October, 1885, he saw one of the defendants and asked about testing the well, and lie said there was no hurry, and that in March, 1886, he took his tools to the place of defendants, as he testifies, to test the well, and defendants refused him permission, because they claimed his time was out. It nowhere appears plaintiff offered to complete this well, which, by his own admission and the testimony of other witnesses, was not in a condition to furnish water, but offered merely to test an unfinished well; nor wag any sufficient reason given by plaintiff why he did not, within a reasonable time, finish the well. This was his first duty, and to be performed within a reasonable time, if no specific time was fixed by the contract. Until he performed this condition he could not rightfully demand that the capacity should be tested. Ho impediment preventing him from completing the well existed, from the early part of August, 1885, up to some time in September, when he took his tools away to bore a web at the school house, nor from the time he finished there until the latter part of October; in short, plaintiff evinced no willingness, nor made any effort, within a reasonable time after making the contract, to finish a well as he had agreed. We shall not enlarge upon the fact that the well, as shown- by the only test made, had not the capacity required by the terms of the special contract, inasmuch as what has already been said,' renders further comment on the facts unnecessary.

It is only in a case where a special contract has been fully performed so that nothing remains to be done but to pay the contract price that a recoveiy of such contract price can bo had under the common counts in assumpsit. The contract between appellee and appellants was special. The proof shows appellee did not fully perform it on his part, and that the unfinished well was not accepted or used by appellants; hence, plaintiff was not entitled to recover under the decoration in this case. It was error, also, to give the first and third instructions given to the jury on behalf of plaintiff. They were calculated to mislead the jury and should have been modified or refused. The judgment of the County Court is reversed and cause remanded.

Reversed and rema/nded.