Mansfield v. Morgan

140 Ala. 567 | Ala. | 1903

HARALSON, J.

1. The complaint contained 5 counts, the first and second being for the breach of a contract by defendant to bore a well, for plaintiff, and the third, fourth, and fifth, being the common counts. The first and second were demurred to, and the demurrers overruled. Error for overruling the demurrer to the first count is alone insisted on. That count sets up a contract on the part of the defendant with plaintiff, dated the 7th of May, 1903, to bore him a Well, by which it was agreed “that defendant was- to pay to plaintiff one dollar per foot for said- boring and drilling through the dirt, — that is, until the rock was struck, — and after that, two dollars per foot, for the remaining number of feet that plaintiff might bore or drill.” The breach assigned is, that plaintiff “bored, or drilled for defendant the said well to the depth of ninety-five (95) feet, to-wit, three (3) feet through the dirt, and ninety-two (92) feet through rock and other substances, but that defendant refused and still refuses to pay for the same.” The amount claimed was $187.00.

The demurrer questioned the count, in that it did not set out the contract in words and figures. This was unnecessary, if the substance of the contract was definitely stated, which seems to have been done.

The second and third grounds of demurrer, were, in substance, that the count shows, that the plaintiff was to bore a well, and does not show that defendant was to procure water, and from aught that appears, plaintiff was to do nothing except to bore or drill a hole in the ground. The demurrer proceeds on the presumption, that a well, eso vi termini, 'implies that water was to be procured and supplied in its boring, and plaintiff should have averred that it was procured. The parties, of course, did not know to what depth the well would have to be bored to procure water, and there was no guarantee, so far as appears from the contract as stated, that the plaintiff was to bore to an indefinite depth without receiving any- compensation for his labor, if water was not procured. What has been said disposes of the other ground of demurrer. *

2. Charge one for plaintiff states generally, a correct proposition of law, and theré was proof on which to predicate it, and from which it could be inferred that defendant accepted the services rendered. After plaintiff had bored ninety-five feet, defendant said to him, as the evidence tends to show, that there was a bad show for water, and advised that plaintiff “go into another hole,” or bore in another place, which he did, after a water-witch had located the spot to bore. The evidence conflicts as to whether the plaintiff or defendant engaged the water-witch, but it seems certain, that the spot was located by him, and plaintiff bored the second well at that spot, and obtained an abundance of water at the depth of about fifty-one feet.

Charge 3 for plaintiff appears to be without fault. The court charged the jury for defendant that there was no proof that defendant ever received any benefit from the first well. This charge explains such an instruction, which was proper, that if defendant consented to the boring of the second well, he would be liable for the first, whether water was obtained or not. If the defendant had bored a number of different holes before procuring water, he would have been liable for boring them all, unless he had by the terms of his contract, limited plaintiff to boring at one place, and protected himself by a guarantee of water.

Charge 4 is not bad because it omitted the words, “from the evidence,” wherein it instructed the jury, “if you believe that defendant,” etc. If defendant apprehended injury from the omission of these words, an explanatory charge should have been requested.—Hall v. Posey, 79 Ala. 84. The charge dealt with evidence that was conflicting,, recited it correctly, and which, if they believed it, they were justifiable in finding for the plaintiff.

3. The fifth count is for money — $187.00—paid by plaintiff for defendant, on, to-wit, the 7th of May, 1903, at his request. There was no evidence that plaintiff ever paid anything for defendant, or that he had ever requested him to do so. Under such conditions, the 3d charge, requested by defendant, — that if the jury believe the evidence, they co.uld not find a verdict for plaintiff under the 5th count, — should have been given. The fact that the jury might have found for plaintiff under other counts, did not cure the error, on the score that the refusal to give the charge was error without injury, as is contended by counsel for plaintiff.

The 4th, 4 1-2 and 6th charges for defendant were properly refused. The contract as alleged was not, as assumed, so much for boring through rock. It was one dollar per foot for boring through dirt, until the rock was struck, and after that, two dollars per foot for the remaining number of feet that plaintiff might bore, and the breach alleged is, that plaintiff bored ninety-five feet in all, three feet through dirt and ninety-two feet through rock and other substances, for boring of which number of feet defendant refuses to pay. The evidence tended to show the performance of the contract as laid.

Por the refusal to give charge 3 for defendant, the judgment is reversed.

Reversed and remanded.