Smith v. Patterson

GRAVES, J.

This was a controversy over a verbal contract between them for the drilling of some water wells for appellant by ap-pellee, under which the former was to furnish materials and the latter do the work at a stipulated price per foot; on a trial of it before the court, sitting without a jury, the appellee was awarded damages in the sum of $323.90 as for appellant’s failure to furnish suitable material, as agreed, thereby preventing the appellee from performing the contract upon his part.

The appeal protests against the judgment on a number of grounds; the main ones being: (1) That appellant’s general and special exceptions to his opponent’s pleadings, as well as his plea of two years’ limitation against the cause of action, should have been sustained; (2) that the court erred both in permitting Luther Patterson to testify that he had a contract with appellant to drill two artesian and two pump wells, or one artesian and three pump wells, and in letting the ap-pellee himself detail conversations concerning such contract between himself and Luther Patterson, held between them in the absence of appellant;. (3) the appellee’s contract being one to furnish and deliver a completed ar-tesian well, .flowing artesian water, and he having failed to do so, he was not entitled over objection to testify, either that the water therefrom would have been flowing artesian water suitable for both people and stock, had the well been completed, or as tó what caused his failure to complete it; (4) the court erred in not holding under the facts that the appel-lee accepted the pipe furnished him by appellant for-the drilling of a completed artesian well, and then breached his contract by not only failing to complete and deliver such a well, but in losing the pipe, thereby terminating all liability of appellant to him. .

In our opinion none of these contentions can be sustained. We here quote this much from appellee’s brief as correctly reflecting what the record shows, as well as the properly inferable legal conclusions therefrom:

“The testimony of the respective parties was somewhat conflicting, but, since judgment was rendered in favor of the appellee as to a portion of his claim, the facts of course will be resolved in his favor by this court so as to sustain the judgment of the trial court. Therefore ap-pellee’s version will be accepted.

“Appellee, in brief, proved a contract between himself and appellant under which he was to drill two artesian water wells and two - pump wells, or, if the first artesian well was too deep (this to be decided by appellant), then he was to drill one artesian water well and three pump wells.

“Appellant contracted to furnish pipe, casing, and strainers for the wells.

“Appellee was to be paid for 'his work at the rate of SO cents per foot.

“Appellant furnished appellee with certain secondhand pipe, and appellee began the drilling of a well. He reached a depth of about 500 feet, when, by reason of the inferior and defective secondhand pipe furnished to him by appellant, the well was lost without any negligence on the part of appellee. Immediately thereafter, appellant instructed appellee to continue the drilling of said well. Appellee, before again beginning w,ork, warned appellant that the pipe and easing he had furnished him for the work was defective and unfit to be used in the work, and protested against 'being required to use it. Appellant, however, instructed the appellee to use it, and did not procure and furnish appellee other pipe and casing.

“In pursuance of the instruction of appellant, appellee again began drilling the well and reached a depth of 658 feet. At that depth or a slightly lesser depth, an artesian water sand was encountered. If this well had been completed at the 658-foot depth, according to ap-pellee, who had qualified as an expert water well driller, it would have flowed drinkable water.

“However, at this depth the well was lost, the pipe, by reason of its inferior and unfit quality, giving way and parting, without any negligence on the part of appellee. After the giving way and parting of the pipe, appellee was unable to proceed with the work on account of the condition of the hole, and the further fact that he did not have on hand sufficient pipe or casing to continue the work or begin the drilling of another hole. Appellee informed appellant of these facts and requested appellant to furnish to him the pipe and casing necessary to be used in the work so that he could proceed, advising appellant that, if he would do this, there would be no charge for the two lost holes. . Appellant refused to furnish appellee the pipe and casing, and refused to permit him to proceed with the work. Each of the pump wells would have been 480 feet deep.

“Appellant was satisfied with the depth of 658 feet as not being too deep for the artesian well.

“Appellee proved the amount of his expenses in the work he did, as well -as the amount of expenses he would have incurred in the drilling of the wells not drilled. He sued for $1,874.80', or, in the alternative, for $1,636.40, and recovered judgment for $323.90 and interest.

“Therefore it will -be readily seen that the failure on the part of appellee to complete the contract was caused by the failure of appellant to abide by his contract to furnish to appellee suitable pipe, casing, and strainers to be used in such work, and in refusing to permit appellee to proceed with the work.”

Among others, appellee cites in support of his right to the recovery, in the circumstances thus outlined, these authorities: Hahl v. Deutsch, 42 Tex. Civ. App. 1, 94 S. W. 443; Hoppes v. Williams (Tex. Civ. App.) 213 S. W. 328; Holiday Oil Co. v. Smith, 100 Okl. 172, 228 P. 775; McPherson v. San Joaquin County, 6 Cal. Unrep. 257, 56 P. 802; McConnell v. Corona; 149 Cal. 60, 85 P. 929, 8 L. R. A. (N. S.) 1171; Holiday v. Smith, 100 Okl. 172, 228 P. 775; Mitchell v. Boyce (Tex. Civ. App.) 120 S. W. 1016; Thompson v. Brown, 106 Iowa, 367, 76 N. W. 819; Cunningham v. Daves (Tex. Civ. App.) 141 S. W. 808.

We agree that they sustain the adjudication. The exceptions to the amended petition were all properly overruled, because it fully set out the appellee’s cause of action as resting mainly upon averments to the effect that he contracted to drill specified wells —that is, one or two wells into the artesian water sands, and two or three pump wells — at a stipulated price per foot of depth, the pipe, casing, and strainers for which were to be furnished to him by the appellant, and that, after incurring the damage to himself in the effort, he was prevented from completing his engagement by reason of the latter’s failure and refusal to furnish him suitable material for the purpose as agreed, thereby blocking his further performance; the cause of action was not barred, as claimed, because it arose out of a contract which was declared upon in both the original and amended petitions, although it was more fully stated in the amended one; there was no material error in admitting the testimony by either Luther Patterson or appellee complained of, because it was otherwise shown what the contract was, and that appellant authorized the arrangement between the two Pattersons that the conversation between them detailed. Neither was the appellee interdicted from giving it as his opinion that the artesian water sand he found would have produced suitable flowing and usable water, since he had qualified as an expert water well driller, with extensive experience in such matters.

The other specific points made have been disposed of in what has otherwise been said, and need not be further discussed.

Upon the cause as a whole, we conclude that the judgment rendered has not been shown to lack sufficient support in either the pleadings or proof. It will therefore be affirmed.

Affirmed.