65 W. Va. 330 | W. Va. | 1909
Charles Redd, Charles A. Kelly, Jospeh D. Kelly and John C. Dillon, partners doing business in the name o,f' Charles Redd, made a verbal contract with John E. Carnahan, Uriah H. Deben-darfer and Oren C. Bradley, partners doing business in the name of the Carnahan-Debendarfer Company, by which the Redd Company agreed to drill for the Carnahan Company making a form of contract known as the Carnegie Fatural Gas Company form, govern as to terms, the well to be drilled, the well to be 2,500 feet below, the Pittsburgh vein of coal. The well is called the Alpheus Sine well Fo. 1 on the Alpheus Sine farm. For work done on this well the Redd Company sued the Carnahan Company in assumpsit, and recovered a verdict for $10,100, for which judgment was rendered. The defendants in addition to the plea of non assumpsit filed specifications of offset and recoupment ; but the court refused to allow evidence of the same. The defendants bring the case to this Court.
The Redd Company claims that the bill of exceptions does not bring up the evidence; but we think it does. They also say there was no exception to the action of the court in refusing a new trial, at the time of that action, and not until after the judgment. This objection is sought'to be supported by the mere fact that the statement that such exception was made comes in the judgment order after the -words of judgment; but that order testifies that such exception was made, but does not say just when. It may have been at the very time when the new trial was refused. What if it was not ? If made, no matter at what point of time in the proceeding in the ease, we think it would be sufficient. It would negative all idea that exceptions was waived. We must not defeat hearing on appeal by technicality.
Coming now to the merits, so far as presented on this writ of error. The well was drilled to a depth of 2,150 feet when oil was struck. The defendants by telephone directed the plaintiffs not to drill any deeper until the defendants could come to the well, but to close in the well, and connect it with the tank, and procure proper connections and a casing head to shut the oil in and cause it to flow into the tank. When the owners of
The rejection of the second contract and of evidence under the specifications of recoupment is sought to be justified by two clauses in the first contract. One is, that if the owners of the well should desire at any time before completion to abandon the same, they should give notice in writing to the drilling company of intention to do so, and then the drilling company should cease further drilling, and receive certain compensation. This relates to abandonment of the work by the well owners, a cancellation of the contract by them. There is no claim that they abandoned the enterprise. It is said that because they did not give notice in writing they could not claim any offset or recoupment; that they could not go on after abandonment of the work by the drilling company. The well owners never gave up the work, never abandoned it. And was not this a question of fact? The other clause is, that if there should be unnecessary delay in the work, or breach of covenant, the owners should have the option to terminate the contract by written notice of election to do so, whereupon they should have right
The defence offered evidence by experts to prove bad work by the plaintiffs, but the court rejected it. The witnesses offered were clearly proven to have had experience and knowledge fitting them to give evidence as experts. The art of mechanical skill of properly drilling oil wells hundreds and hundreds of feet through the different strata into the hidden bowels of the earth, the character of the strata, the proper treatment of them, the appropriate tools best suited for them, the proper casings, the cleaning the well, the fishing for and extricating of broken casings and lost tools, and other incidents in the work, are not within the knowledge of people generally. Indeed, there is no more intricate work; none requiring more special capacity, skill and experience. Clearly expert evidence as to the character of the work is admissible upon the character of the work done. The evidence of mechanics is receivable in matters of technical skill pertaining to their trade. Rogers on Expert Testimony, secs. 110, 111; 12 Amer. & Eng. Ency. L. 428-9; McKelvy v. C. & O. R. Co., 35 W. Va. 500; Schell v. Barrow, 36 Id. 212. Delmar Oil Co. v. Bartlett, 62 W. Va. 700 clearly sustains this position.
We do not decide finally any questions of fact. We deal with the evidence only so far as to give our opinion as to admissibility. We hold that the writing dated 24th January, 1905, and
Judgment reversed, verdict set aside and remanded for new trial.
Reversed.