224 P. 668 | Wyo. | 1924
This is a proceeding in error to review a judgment in favor of the defendant in error (plaintiff below) in an action to recover for the drilling of two oil wells, and to foreclose a lien claimed under the provisions of Chapter 128 of the session laws of 1919, now sections 4830 to 4839, of the Compiled Statutes of 1920.
The only contention is that the verdict and judgment are not sustained by sufficient evidence.
It is argued that the notice of lien was invalid because it did not recite that the work was done under a contract “with the owner, part-owner or lessee” or “the authorized agent of the owner or part-owner or lessee” or “the trustee, agent or receiver of any such owner,” as provided by section 4830. It may be conceded that that section gives the right to a lien to those only who have furnished material or done work under a contract with some one who had a right to contract with reference to the property benefited. But the facts necessary to the right to a lien must not be confounded with the facts required to be stated in the notice of lien. Hurlbert vs. New Ulm Basket Works, 47 Minn, 81, 49 N. W. 521. Section 4830 cloes not purport to prescribe
The plaintiff claimed that he drilled the wells under an oral contract made about June 7, 1920 with defendant Craig, who was then the owner of the land on which the wells were drilled. The plaintiff’s evidence tended to prove that by this contract he agreed to ‘ ‘ drill a well, starting as large a hole as he could and carrying it as far as he could, ’ ’ and that Craig agreed to furnish casing and to pay for the drilling at the rate of $5 per foot. A few days after June 7, the plaintiff moved his drilling rig to the land, commenced drilling, and, by June 21, had drilled to a depth of
‘ ‘ It will be all right for Higgins to drill under same terms and conditions that Gardner is working. Gardner will show you his contract; Go by that and nothing else. ’ ’
This telegram was showed to plaintiff, and was notice to him that Craig persisted in maintaining the position, an
The plaintiff relied wholly on the contract of June 7. We do not question the right of the jury to find that that contract was made as claimed by plaintiff, and that pursuant thereto he had drilled to the depth of 100 feet without any objection on the part of Craig. A judgment for the contract price for drilling that depth, and for a lien to that extent, could not be disturbed. A more serious question arises as to the sufficiency of the evidence to "sustain a judgment for the full contract price for the additional drilling done after June 22. Assuming that the contract of June 7 was made as claimed by plaintiff, it seems to us that Craig*, on June 21 or 22, absolutely repudiated it. By his repudiation of the contract, Craig made himself liable for the con
‘ ‘ If a man engages to have work done, and afterwards repudiates his contract before the work has been begun or when it has been only partially done, it is inflicting damage on the defendant without benefit to the plaintiff to allow the latter to insist on proceeding with the contract. The work may be useless to the defendant, and yet he would be forced to pay the full contract price. On the other hand, the plaintiff is interested only in the profit he will make out of the contract. If he receives this it is equally advantageous for him to use his time otherwise. ’ ’
A few of the many authorities supporting this rule are Clark v. Marsiglia, 1 Denio (N. Y.) 317, 43 Am. Dec. 670 (the leading case) ; Gibbons v. Bente, 51 Minn. 499; 53 N. W. 756, 22 L. R. A. 80; Heaver v. Lanahan, 74 Md. 493; 22 Atl. 263; Wigent v. Marrs, 130 Mich. 609; 90 N. W. 423; Badger Lbr. Co. v. Jones Lbr. Co., 140 Wis. 73; 121 N. W. 933; Thomas v. Clayton Piano Co., 47 Utah 91; 151 Pac. 543; Delaware Marine Sup. Mfg. Co. v. Phila. Lamp Mfg. Co., 5 Boyce (28 Del.) 524; 95 Atl. 235; Spratt v. Brown-Petzel Lbr. Co., 105 Ore. 672, 210 Pac. 700; 13 C. J. 655-656. The rule is applied to an oil well drilling contract in Osage Oil & Ref. Co. v. Lee Farm Oil Co. (Tex. Civ. App.) 230 S. W. 518.
Under this rule the plaintiff had no right to drill under the contract of June 7 after its repudiation, and unless he consented to resume and continue work under the proposed new dr modified contract, he should have ceased work on June 22, and sought satisfaction by an action to recover the contract price for the work already done and damages for the breach in refusing to permit him to continue. Unfor
We think a new trial should be had unless the plaintiff be satisfied with a judgment for the contract price for the work done before June 22. Accordingly, the case will be remanded to the district court with instructions to vacate the judgment heretofore rendered and grant a new trial unless the plaintiff elect to consent to a modification reducing the judgment to $500, with interest from June 22, 1920.
NOTE — See 13 C. J. p. 656; 27 Cyc. pp. 777 (1925 anno) 780.