122 Ga. 61 | Ga. | 1905
On August 30, 1900, H. E. Teal and M. B. Council entered into a written contract under the terms of which the former was to drill an artesian well on the farm of the latter, commencing with casing four and one half inches in diameter and finishing with casing as large as practicable, the work to be commenced as near the first of October as practicable and to be pushed to completion as fast as practicable. It was stipulated in this contract that Teal did not guarantee the well “to flow above the surface,” but was to be paid “one dollar per foot for the depth of well drilled,” and that Council was to furnish the necessary casing and was to board three men while doing the Work. The well was commenced and partially completed under this contract. On July 3, 1901, Teal instituted an action against Council, alleging that after the well had been drilled to a depth of four hundred and fifty-one feet, the defendant declined to furnish any more casing, and plaintiff was in consequence compelled to abandon the work; that defendant was indebted to him in the sum of $451.00 under the contract rate of one dollar per foot for all the depth of well drilled, and also in the sum of $5.80 for certain material furnished at defendant’s request, which amounts the defendant refused to pay. An answer was filed by Council, in which he admitted the execution of the written contract, a copy of which was attached to the plaintiff’s petition, but asserted that the writing did not set forth the entire contract, and that he had not committed the alleged breach thereof, nor was he indebted to the
The “personal trusts" referred to in the above-cited section of our code are those arising out of a fiduciary relation such as the relation between principal and agent, and the like; and that section has no application to the contractuál relation existing between thq parties to an agreement under the terms of which one of them obligates himself to accomplish a given task, not alone or in person^ but through workmen in his employ. The written contract declared on in the present case on its face negatives the idea that Teal was himself to perform the labor incident to the boring of the well, and contains no stipulation that he was to personally superintend the'work. This being true, Council had no ground on which to base his expectation and understanding that Teal would give his personal attention to the boring of the well. Civil Code, §3724. Other allegations in the defendant’s plea were stricken by the court, and exception was taken to its action in so doing. But in the brief and argument filed in behalf of the plaintiff in error no insistence is made that the court committed error in striking these allegations, and the assignments of error touching them are therefore to be treated as having been abandoned..
Judgment on main hill of exceptions affirmed; cross-hill dismissed.