44 Neb. 21 | Neb. | 1895
It is necessary to refer to the petition originally filed in the district court of Douglas county merely to explain the
By his cross-petition the defendant averred that plaintiff, through its president, its duly authorized agent, entered into a contract in writing, of which the following is a copy:
“September 11, 1890.
“Joseph Burns : Please sink a tubular well, seven-inch lap-welded iron pipe, at our vinegar factory at Omaha, and continue sinking the same until you get a water supply of 2,000 gallons of water per hour, unless sooner stopped by us. You to furnish all pipe points, point, and working barrel and valves, together with plunger rods and all other material necessary to construct and complete the well in a first-class manner to the surface of the ground, aud on the completion of the work we agree to settle for same at the rate of five dollars ($5) per foot; one-half to be paid in cash and the balance to be paid by our note of ninety days without interest. We will furnish at our own expense the pump, or whatever we may decide to use to raise the wafer with. It is the understanding that you pay all bills for labor and material necessary to complete the work as above, for the above prices, and should the well have to be sunk below 250 feet, then the price shall be six dollars per foot below*23 the first 250 feet or for the second 250 feet or any part thereof that it may be necessary to sink the well to obtain the necessary amount of water; and it is further understood that in no case shall the well be sunk deeper than 500 feet deep at this price from the surface of the ground. It is the understanding that when the well is completed as above it shall be paid for as first mentioned, namely, one-half cash and the balance in note as above.
“J. H. Barrett, Pres.”
Immediately following the reference in the cross-petition to the above coutract attached as an exhibit there were the following averments:
“4. And this defendant alleges that thereupon and in pursuance of said contract he sank a well on said lots or premises, being the same identical premises upon which the buildings, machinery, and manufactory so as aforesaid erected by plaintiff, stood and were situated, and that in sinking said well this defendant did work and furnished material Between the 24th day of September, 1890, and the 13th day of January, 1891, inclusive, amounting in the aggregate, according to the terms of said contract, to the sum of $2,890, and that this defendant further performed all the terms and conditions of said contract on his part to be performed.”
There was no other description of the manner in which the defendant had entitled himself to the foreclosure prayed, except that there were the usual averments of the filing of a verified account for a mechanic’s lien as required by stat-rite. The prayer of the cross-petition was that an accounting might be had of the amount due from plaintiff to defendant; that such amount should be adjudged and decreed to be a valid and subsisting lien upon said premises; that ■defendant should have judgment against plaintiff for the sum of $2,890,'with interest thereon from the 7th day of February, 1891, the day on which was filed the claim of ■defendant for a lien; that said premises be sold and the
“That on the 11th day of September, 1890, the plaintiff made, and the defendant accepted, the written proposition, dated September 11, 1890, and set out in the answer and cross-petition of the defendant; that by the terms of said proposition, which was accepted as aforesaid, the plaintiff" employed the defendant to sink a tubular well of seven-inch lap-welded iron pipe at the plaintiff’s vinegar factory at Omaha, Nebraska, and to continue' to sink the same until the defendant should get a water supply of two thousand gallons of water per hour, unless sooner stopped by the plaintiff; that said well, by the terms of said contract, was required to be cased from top to bottom with lap-welded iron pipe, seven inches in diameter on the inside; that said contract might be performed by the defendant either (1) by sinking a well and casing the same with lap-welded iron pipe of tile size aforesaid until the defendant secured thereby a water supply of two thousand gallons of water per hour, or (2) until stopped by the plaintiff; that the defendant in good faith undertook the execution of said contract and ¡proceeded in the performance of the same in a proper and workmanlike manner, and that, in so doing, the defendant sank a seven-inch tubular pipe a distance of one hundred and forty-five feet from the surface of the ground, at which point the defendant struck a hard limestone formation sixty-five feet in thickness; that-the defendant then proceeded through said rock formation and extended it a number of feet with a hole seven inches in*25 diameter, and at the bottom of said hole proceeded further with a hole six and then five inches in diameter, until he reached a point five hundred and twenty feet below the surface of the ground, at which time the defendant determined to ream out and make larger the hole where it would'not receive a pipe seven inches in diameter, and to carry the seven-inch pipe down the distance of three hundred and eighty-five feet from the surface of the ground with a view of extending the depth of the well below said five hundred and twenty feet and until the supply of water aforesaid was reached; that while the defendant was proceeding with said work as aforesaid, and before he secured the amount of water required to perform the conditions of said contract, the plaintiff stopped the defendant from work and compelled him to leave the premises and to remove his working tools and materials therefrom, and by reason thereof the defendant was unable to longer continue said work, though the defendant was then willing and in good faith offered to continue tlie same and to complete said well from top to bottom cased with lap-welded iron pipe, seven inches in diameter, inside measurement; that by the terms of said contract, upon the performance of the same, the defendant was entitled to receive from the plaintiff the following amounts:
“ For the first 250 feet, $5 per.foot, a total of..... $1,250
“For the second 250 feet,$6 per foot, a total of... 1,500
“That is to say, a total for the 500 feet of...... $2,750
“That when the plaintiff stopped the defendant, said well was not complete a distance of five hundred feet from the surface of the ground, but that the work which had been done below the one-hundred and forty-five feet from the ground was a part of the whole work contracted for, and was properly done in order to sink said well a distance of five hundred feet from the ground with lap-welded iron pipe, seven inches in diameter, inside measurement, from*26 top to bottom, and in order to enlarge the said well and sink a seven-inch pipe from top to bottom, and to complete the same with the equipments provided for in said contract, the following work and material of the value, as follows, was necessary, that is to say: That the work to enlarge said hole.so as to receive a seven-inch pipe from top to bottom was fairly and reasonably worth the sum of...... $100 00
“That it would require an additional 355 feet of seven-inch pipe at $1.10 per foot, making a total of........................................,1..... 390 50
“ That it would require a working barrel of the value of............................................. 60 00
“ That it would require a point to said pipe of the value of...........................................30 00
“That it would require a plunging rod of the value of............. 14 00
“Making a total amount of work, material, and equipments necessary to complete said well, in addition to what had been done as aforesaid, the sum of......................................... $594 50
“The court therefore finds that the defendant is entitled to recover in this case such proportion of the whole contract price of $2,750 as the work done bore to said contract price, and that, therefore, that the work done was of the value of $2,750, less the said sum of. $594.50, the total of $2,155.50; that the defendant is entitled to interest thereon from the 7th day of February, 1891, until the first day of the present term of court, that is to say, September 21, 1891, seven months and a half, which said interest, at the rate of seven per cent per annum, makes the sum of $94.27, and that the total amount of the defendant’s recovery, with interest to the first day of the present term of court should be the sum of $2,249.77.”
The above quoted findings, as far as they go, correctly reflect the evidence as adduced by the defendant, except that
Under the averments in the cross-petition of defendant of strict performance of the terms of his contract it more than admits of doubt whether in any event the relief decreed could have been granted, for proof of facts which excuse performance can never be said to amount to performance itself. A party will not be allowed to allege in his petition one cause of action and prove an other upon the trial. The allegata et probata must agree. (Irnhoff v. House, 36 Neb., 28; Powder River Live Stock Co. v. Lamb, 38 Neb., 339; Traver v. Shaefle, 33 Neb., 531; Luce v. Foster, 42 Neb., 818.) The cross-petition presented but the right to enforce a mechanic’s lien for the full performance of a written contract. The decree recognized under these averments the right to show and recover for but a partial performance.
Appellant has strenuously contended that no right to enforce a mechanic’s lieu for the sinking of a well exists under the statutes of. this state. Of this proposition no decision was necessary, hence it has received no consideration. In our investigations we have not questioned the right to relief of this character upon a proper case being presented, but this has been conceded solely for the purposes of this discussion. The judgment of the district court is
Reversed.