110 S.W. 533 | Tex. App. | 1908
Appellee instituted this suit and alleged that: "August 25, A.D. 1905, plaintiff and defendant made and entered into a contract whereby, and by the terms of which, plaintiff was to drill and bore a well for defendant on the place known as the John Luttrall or Jim Dean farm, about five miles southeast from Jacksboro, Jack County, Texas, at and for the sum hereinafter stated." It was further charged in substance that pursuant to the contract appellee drilled 334 feet, when upon demand therefor, appellant refused to pay anything for the work so done. It was alleged that the drilling was reasonably worth fifty cents per foot for the first two hundred feet, seventy-five cents for the next forty feet, $1.25 per foot for the next forty feet, $1.50 per foot for the next forty feet, the sum due at such rates being $341, for which appellee sued.
Appellant pleaded the general denial and, specially, that by the terms of the contract, appellee was to "dig as deep as three hundred and fifty feet, or until he reached plenty of water, or until defendant told him to stop," but that he did neither; that on the contrary, at the depth of about three hundred and twenty-two feet "he got the well crooked, and without the knowledge or consent of defendant he procured a large amount of dynamite and placed the same in said well, and blew the casing out of said well, and ruined the well and caused the same to fill up for the distance of one hundred feet." Appellant further alleged that the well was thereafter useless and of no value to him whatever, and that said blast of dynamite ruined well casing belonging to appellant of the value of fourteen dollars, and rope furnished appellee at his request, and for which he promised to pay, of the value of seven dollars, and these two items were pleaded as an offset to appellee's demand.
The evidence is sharply conflicting as to the terms of the contract, that of appellant fully supporting the contract as pleaded by him, while appellee specifically denied that he either insured water, or agreed to bore to any designated depth or until appellant told him to stop. The trial resulted in a verdict and judgment for appellee for the sum of one hundred and fifty dollars, appellant's offsets being wholly denied.
Treating the assignments of error in a general way and pretermitting a discussion of those not deemed material, we have concluded that we must sustain appellant's contention that the verdict and judgment is contrary to the law and the evidence. From appellee's own testimony it appears, as indeed he alleges in his petition, that he was engaged in the business of a well digger — of "boring wells for water" — employing and controlling his own "outfit," and that in undertaking the work for appellant he was acting, by the legal tests, as an independent contractor and not merely as appellant's employee to drill or bore in the ground for such pay as the service was reasonably worth. See Wallace v. Southern Cotton Oil Co.,
If we assume, as we do in deference to the verdict of the jury, that as the contract was originally made appellee did not guarantee to secure water nor agree to bore the well for any given number of feet, yet the contract in its very nature contemplated the procurement of water, and in undertaking the work it is to be implied that appellee agreed to bore at least a reasonable depth for the purpose of securing the object in contemplation of both parties, and we think it may be justly said that when appellee reached the depth of three hundred feet and, as he testified, then agreed to go fifty feet farther, there was an application to the contract of the distance to be bored and that the parties then mutually made certain what was left uncertain by the terms of the contract originally entered into; that is, that by this subsequent mutual agreement the original agreement is to be read as if it specified an undertaking on appellee's part to go at least three hundred and fifty feet unless in the meantime water was secured. If so, but one conclusion can be drawn, and that is that appellee failed to fulfill his contract, *285 and therefore is not entitled to recover pay for his unsuccessful undertaking.
But if this view be erroneous, we think the same result must be reached, for, as already observed, it is to be implied that appellee agreed to bore for water to at least a reasonable depth. It is undisputed that water was not secured, and it is not made to appear, nor is there any contention in appellee's behalf, that a depth of three hundred and fifty feet, or even farther, is an unreasonable distance to bore in order to secure water. It is also undisputed that appellee by his own act and without fault or direction of appellant destroyed the work already done, so that the well became entirely useless and of no value to appellant, and we fail to see any just reason for holding that the loss should fall upon appellant rather than upon appellee. In undertaking the work, appellee impliedly warranted that he could perform the thing he undertook to do, — that is, to bore until water was secured or at least to a reasonable distance in the effort to do so. In the contract he made no provision exempting him from performance for causes such as here shown, nor does the contract contain any warranty on the part of the owner. The case is analogous, it seems to us, to building contracts where, before the completion of the building, it is destroyed without the fault of the owner or, indeed, of either party, and where in the absence of warranties providing for the contingency, the loss is held to devolve upon the contractor. See Weis v. Devlin,
There yet remains for disposition appellant's cross claim. We fail to find any valid reason why appellant should be denied recovery of the items he sought. Appellee admits the purchase of the rope at his request and a failure to pay therefor, and it seems certain that appellant is entitled to recover for this item. Appellant's right to recover the damages done to his casing may not appear quite so clear. We have nevertheless finally concluded that he should recover for this also. As opposed to this conclusion it is insisted that appellant failed to show negligence in the use of dynamite. We held in the case of Barnes v. Zettlemoyer, 25 Texas Civ. App. 468[
It is accordingly ordered that the judgment be reversed and here rendered for appellant in accord with the foregoing conclusions.
Reversed and rendered. *287