119 Wis. 166 | Wis. | 1903
Tbe main question at issue between tbe parties was wbetber tbe contract was simply .to bore a well at a certain price per foot or wbetber tbe plaintiff, in addition, guaranteed to obtain a sufficient supply of water for tbe defendant’s farm purposes. Upon this question most of tbe minor questions binged. Tbe evidence was’ in direct conflict upon tbe question, and it seems to bave been fairly and fully •submitted to tbe jury, wbo returned a verdict in favor of tbe plaintiff’s version. While many exceptions were taken, there are only'a few of them which are tangible or worthy of serious attention, and these will be briefly considered.
It appeared that tbe payment of'$115 was made by tbe defendant to tbe plaintiff’s wife, and that she was her husband’s agent for that purpose. It did not appear, however, that she bad any broader authority as agent of her husband, or bad ever assumed to act as agent except to keep her husband’s accounts and collect bills. One Ellen Davis, wbo was present at the time tbe money was paid, was called as a witness by tbe defendant, and upon cross-examination volunteered the statement that when plaintiff’s wife received tbe money she said that her husband would make the well all right. 'This statement was stricken out by tbe court, and tbe ruling is assigned as error. There are two answers to tbe claim. In tbe first place, tbe witness bad already testified to tbe fact in her direct examination, and tbe statement was never stricken out; in tbe second place, there is no evidence that tbe plaintiff’s wife bad any express or apparent authority to make any such -agreement on behalf of her husband.
Tbe court charged tbe jury that in a contract of well drilling there is no implied undertaking that water shall be obtained, or that tbe well shall be a success as to tbe quantity or quality of tbe water obtained, but only that tbe work shall be done in a workmanlike manner, with such skill as may ■ordinarily be expected from those who undertake such work.
The court took from the jury the consideration of all items in the counterclaim except the claim to recover the $175 paid on the contract, and this is claimed to be error. In support of this assignment of error it is said that there was evidence by the defendant to the effect that the plaintiff agreed that he would get water in eight or nine days; also that there was evidence that the well was negligently and unskilfully bored, and thus consumed several months in its construction, and hence that the defendant furnished board to the plaintiff and his helper and team for a -long period, more than he was required to furnish by the contract, for which he is entitled to recover if the jury found either that the contract was as claimed by defendant or that the work was negligently prolonged. As to the first of these claims, it is sufficient to say that the defendant himself testified that the conversation between himself and the plaintiff was to the effect that the plaintiff thought it would take three .or four weeks, but that he did not know the length of time it would take to get water. The evidence cannot be construed as showing that any definite contract as to time or depth was made by the plaintiff, even construing it most favorably to the defendant.
As to the second claim, there is absolutely no evidence that the boring of the well consumed any longer time by reason of' careless or negligent work than it would have consumed if the
A number of instructions were requested by the defendant and refused, but, so far as they were correct, they were fully covered by the general charge. The general claim is made that the verdict is against the evidence, but examination of the record shows that this contention cannot be sustained.
By the Oowrt. — Judgment affirmed.
