127 Iowa 742 | Iowa | 1905
The parties entered into a contract for a well which was to- supply the appellant’s creamery with good, clean, pure water. There is a conflict in the evidence as to whether the well was to be a three or four inch one, and as to whether the plaintiff was to furnish therefor a Cook sand point; the decided weight of the evidence supporting the. appellant’s contention on these points. The plaintiff bored the well to a depth of 381 feet. He bored a 4-inch hole over 300 feet of the distance, and the rest of the way
The seventh instruction is complained of, and we think justly so. It not only required the jury to find that the contract had been breached in several particulars, to defeat the plaintiff’s recovery, but it again directed the jury that a three-inch well would be a substantial compliance with the contract. The evidence was conclusive, as we have seen, that the well did not supply good, clear, pure water, and this was what the plaintiff undertook to furnish; hence the verdict was contrary to the evidence, and should have been set aside.