171 P. 926 | Mont. | 1918
delivered the opinion of the court.
This action was brought against four defendants — B. D., E. L., W. W. and Edythe Purdy — as copartners under the firm name of Purdy Bros., to recover of them the value of work done and material furnished by plaintiff in drilling a well for them under an oral contract. The complaint alleges that the plaintiff agreed on his part to drill the well at a place designated by defendants upon their land or that of some one of them, for the purpose of obtaining water. It then alleges the terms of the contract, how
1. The first contention made is that the court erred to the
The authorities cited by counsel fully sustain their contention; but they have no application to any ruling made by the court during the trial in this case. Counsel offered no evidence which tended in any way to show that the contract differed in any of its terms from those alleged. Of the several rulings of which they complain, a brief notice of two will be sufficient to show that none of them involved the principle contended for by counsel. Martin Lyden, a witness who had been employed by plaintiff, described somewhat in detail the construction of the well, the measurements of it, the depth to which the water rose in it after it was finished, the kind of casing installed in it, etc. After stating in substance, in reply to questions put to him on cross-examination, that he knew nothing of the terms of the contract, he was asked: “Didn’t you tell Miss Purdy the day before, you came over to put the easing in the well, or the night before, or some few days after the drill-bit was lost, these words: That it was not a good well, that Chealey was going to claim it was, and that he was a hard man to run rip against ? ’ ’ Upon objection by counsel for plaintiff that the question called for evidence that was incompetent and immaterial under any issue made by the pleadings, the witness was not permitted to answer. On direct examination, the defendant B. D. Purdy was asked: “Have you or your brothers or sisters used this well at any time?” The witness was not permitted to answer. There was no prejudice. Neither an affirmative nor a negative answer to either of these questions would have had any value as proof that the contract contained any stipulation other than those alleged in the complaint.
2. The plaintiff testified that he had first had a conversation
3. The last contention is that the evidence is insufficient to sustain the verdict. The argument is that since the complaint
The judgment and order are affirmed.
Affirmed.