| Ark. | Jan 21, 1905
(after stating the facts.) This is an action to recover money which the plaintiff claims that the defendant is owing for work and labor performed under a contract, and the decision turns upon the meaning of this contract. The decision of the circuit court seems to have been governed, to some extent, by the fact that, during the progress of the work, the defendant paid more than one-third of the contract price of the first 100 feet. The circuit judge considered this act of the defendant as, to some extent, a recognition of the claim that one-third of the contract price should be paid in installments, as each 100 feet of the work was completed, and he held that to be the meaning of the contract. • But in our opinion not very much importance can be attached to these payments,' for they do not amount to one-third of the contract price for the work completed. Besides, the parties in their testimony differ as to reasons why these payments were made. One party testified that the payments were demanded under the terms of the contract and paid because it was thought that the amounts were due under the contract. The other testified that these sums over one-third of the price for the first 100 feet represented advances made by the defendant to plaintiff as a favor to the plaintiff to assist in the work, and that it was not done under the belief or in recognition of the fact that the plaintiff had a right to demand such payments. So that it seems to us that this is not a case where the courts can attach much importance to the acts, of the parties in carrying out the contract, and the decision must rest mainly on the language of the contract itself. The language of the contract on this point is that the lumber company “agrees to pay said well and pump company one-third of the price herein agreed upon per foot on demand when 100 feet is drilled, the balance to be due and payable as soon as said well has been drilled and a satisfactory test has been made.” The question then is how much was to be paid when the first 100 feet were drilled, for the contract clearly states that the balance was to be paid when the work was completed? To quote the contract again, the amount to be paid at that time was “one-third of the price herein agreed upon per foot.” Now, either the contract means that one-third of the whole contract price was to be paid at that time, or that only one-third of the price of the 100 feet completed should be paid. As it seems unreasonable to believe that the parties intended that one-third of the whole price of work, which was to be paid for by the foot, and the amount of which could not be determined until completed,- should be paid for at the time that only one-third of it was completed, and when it could not be told how much the whole would amount to, we are forced to the conclusion that only one-third of the work completed at that time was to be paid for, and it follows, from the plain language of the contract, that the balance was not due until the well was completed.
It follows from what we have said that in our opinion the circuit court erred in giving the instruction set out in the statement of facts.
The judgment is therefore reversed, and the cause remanded for a new trial.