71 So. 70 | Ala. Ct. App. | 1916
Lead Opinion
Action by appellee, as plaintiff below, against appellant, as defendant below, for compensation for boring a well.
The complaint, to which no demurrer was filed, contained four counts, but the second was eliminated by the giving of the affirmative charge for defendant. The refusal of the court to give such charge for defendant as to each of the other counts is the principal error relied on for a reversal.
The first and third counts sought a recovery under a special contract for boring said well, the only difference between the two being that the latter more fully set out the contract; while the fourth count sought a recovery under the common count for work and labor done at plaintiff’s request in boring said well, etc. Defendant pleaded the general issue with leave to give in evidence any matter that might be specially pleaded. The con
“In July, 1912, I made a contract with defendant to bore him a well, for which he was to give me a mule [which was shown to be worth $125.] The contract was that I was to bore the well for the said mule and defendant was to pay the cost [$3] of moving my well-boring machinery to his place where the well was to be bored, and was to furnish the casing for said well [shown to have been put in by defendant at a reasonable cost of $2.50], I was to bore the well such a depth as would furnish water sufficient for defendant’s use at his house for his family and for his live stock that was kept on his premises. * * * After I moved my well-boring machinery to defendant’s premises for the purpose of boring the well and had set up the-machinery, I made a new contract with defendant for boring the well. Defendant informed me that, after having made the first agreement about boring the well, he had sold the mule he was to give me for said work, but that he presumed I would just as soon have the- money as the mule. To this I assented, and it was then agreed that I was to bore the well and was to receive as compensation 50 cents per foot for boring through dirt and $1 per foot for boring through rock. Nothing was said in this last agreement about the quantity of water I was to furnish. It was simply agreed that I was to get water. I bored the well 72 feet in depth, and 6 of this was through dirt and sixty-six of this was through rock. I bored until I struck water. The day before I quit work on the well, I saw the defendant, * * * and he paid me $10, and he told me that the well did not furnish sufficient water, and to work one more day on it and quit. When this new contract was made, my well-boring machinery had been set up on defendant’s premises preparatory to begin boring under the original contract. Under the new contract, nothing was said about defendant’s paying for the casing of the well, or for the removal of the machinery to his premises.”
The defendant insists that under this evidence he was entitled to the affirmative charge as to count 3 of the complaint on account of an alleged variance between allegation and proof, because the count in describing the special contract sued on, which was the new or modified contract, alleged that under it defendant not only was to pay plaintiff 50 cents per foot for dirt and $1 per foot for rock bored through in sinking the well, but
The testimony of the defendant as to the original contract between the parties and as to the facts and circumstances under which it was modified coincides with that of plaintiff. Both agree that under the new or modified contract plaintiff was to get for boring the well, not a mule, as first agreed, but 50 cents per foot for dirt and $1 per foot for rock bored through in sinking the well; and both agree that at the time of this new agreement nothing was said about defendant’s paying for the casing of the well and the removal of plaintiff’s machinery, as had been formerly agreed to — that is, under the contract as originally made. What is to be inferred from their silence as to these matters? May it not be reasonably implied from their failure to make any change in these stipulations of the old contract, which they were merely modifying, that they intended them to remain as there agreed ? In other words, was it not the implied understanding that the old contract was to stand except as to particulars where a change was expressly agreed on ?
The charge, we think, was not only calculated to mislead the jury for reasons just adverted to, but was positively confusing
That the original contract — the terms of which were undisputed — was altered or changed, both parties agree. The extent of that modification only was in dispute, which was clearly a question for the jury to determine.—Swanner v. Swanner, 50 Ala. 66.
The plaintiff also testified, as before seen, that, at the time the new contract was made, “it was simply agreed that he was to get water;” while the defendant testified that, at the time of the making of the new contract, the plaintiff then expressly again agreed to bore the well deep enough to furnish a sufficient supply of water for defendant’s family and live stock, and that by actual test the well bored by plaintiff furnished only 12 or 14 two-gallon buckets ever 12 hours, which was totally insufficient for the purpose mentioned.
We find no error in the record, and the judgment appealed from is affirmed.
Affirmed.
Rehearing
ON REHEARING.
On re-examination of this case on rehearing, I entertain the opinion, on the plaintiff’s own evidence, which is without dispute on this point, that the evidence as to the first con
“Under the first contract that I made with the defendant, I was to receive a mule for boring the well, and defendant was to pay for moving my machinery outfit to his premises and was also to pay for the casing of the well. We abandoned this old contract and made a new one, defendant agreeing to pay me 50 cents per foot for dirt and $1 per foot for rock. It was under this contract I bored the well. When the last contract was made, my well-boring machinery had been set up on defendant’s premises preparatory to begin boring under the original contract. Under the new contract, nothing was said about defendant paying for the casing of the well or for the removal of the machinery to his premises.”
This testimony of the plaintiff is unmistakably conclusive in establishing the fact that the first contract was abandoned and a new contract entered into covering the same subject-matter between the same parties (L. & N. R. R. Co. v. Bontrager, 186 Ala. 186, 65 South. 28), and the acceptance of the new contract by the parties by operation of law extinguished the former contract (Otis v. McMillan & Son [headnote 3] 70 Ala. 46).
This evidence clearly does not show a mere modification of the first contract, but an abandonment of it by mutual agreement of the parties, and leaves no room for construing the new contract as a modification of the old. It is elementary that it is not the office of the law or the courts to make contracts for parties, but to enforce them as made by the parties. Therefore the evidence as to the value of the mule was wholly immaterial and should have been rejected on the appellant’s objection.
If the facts hypothesized in charge 7 were found by the jury from the evidence, the plaintiff was not entitled to recover, and the refusal of this charge was erroneous. The only criticism to which it was-subject is that it was too favorable to the plaintiff, in that it required the jury to find that the plaintiff had not complied with the last contract. No doubt, in fixing the price to be paid in the new contract, the fact that the machinery had already been moved and set down was taken into consideration by the parties.
For these errors, the judgment should be reversed.