| S.D. | Sep 2, 1899
This was an action to recover a balance alleged to be due plaintiffs for drilling and sinking a well on the farm of the defendant. Verdict and judgment for the plaintiffs, and defendant appeals.
The well seems to have been drilled under an oral contract betwen the plaintiffs and the defendant, and there is a conflict in the evidence as to the precise nature of the contract, both as to the character of the well to be drilled, the quantity of water it should furnish, and the price per foot to be paid for sinking the same. No useful purpose would be sub-served by an attempt to reproduce this evidence in this opin
The appellant contends that the evidence was insufficient to sustain the verdict, for the reason that it clearly appears from the evidence that the supply of water should be such as to satisfy the appellant, and it further appears that the appellant was not satisfied with the supply of water and never accepted the well. But in this we think the appellant as in error. as the evidence of the respondents was in conflict with that of the appellant upon that subject. It was therefore for the jury to determine, under this conflict in the evidence, which of the parties they would believe. “Where, in a case tried before a jury, the evidence is conflicting, this court will not weigh the evidence, or go further than to determine therefrom whether or not the party has given sufficient legal evidence to sustain his verdict, without regard to the evidence given on the part of the other party, except so far as such evidence tends to sustain his case.” Jeansch v. Lewis, 1 S. D. 609, 48 N.W. 128" court="S.D." date_filed="1891-03-04" href="https://app.midpage.ai/document/jeansch-v-lewis-6682999?utm_source=webapp" opinion_id="6682999">48 N. W. 128. Certainly, there was sufficient evidence on the part of the respondents to warrant the jury in finding that the contract was as stated by thean, aaad that they had complied with the terms of their contract. Assuming, however, that the contract was as claimed by appellant, that the well was to be sunk to a sufficient depth to produce a flow of water satisfactory to him, still the appellant could not arbitrarily say that he was not satisfied, and refuse to pay for the same, providing the well did in fact afford a sufficient supply of water for the needs of the appellant’s farm. Proof on this question was adduced
On the trial the appellant, John H. Mead, was called and sworn as a witness for the respondents, and was asked by their attorney, “How many head of cattle have you^” This question was objected to, as incompetent and irrelevant, objection overruled, and appellant excepted, and this ruling is now assigned as error. We discover no error in this ruling of the court. The evident object and purpose of the question
A number of similar questions were propounded to the witness, objected to, objections overruled, and exceptions taken. For the reasons above stated, we think the testimony was admissible, and that the court committed no error in overruling the objections thereto.
Portions of the judge’s charge to the jury, made upon his own motion, are also excepted to, and are assigned as error. The first instruction to which exception is taken was “that the defendant was entitled to a well that would supply a reasonable and sufficient quantity of water for the wants and needs of himself and of a farm of that character in that neighborhood. ” The appellant contends that this instruction is erroneous, in that it limits the supply of water to the ordinary uses of the farm in that vicinity, and to the number of cattle that he might then have upon said farm. We are of the opinion however,' that there was no error in this instruction, and that the jury, under it, would, and probably did, take into consideration all the reasonable needs of the appellant, under any circumstances, on a farm of that character in that neighborhood
The court further instructed the jury as follows: “As to the last proposition, as to whether or not the plaintiffs found a sufficiency of water, — that is, made a well, — evidence on the part of both parties, or, I might say, the evidence on the part
The following instruction was also excepted to and assigned as error: “Hence you must consider the condition of the parties and the circumstances surrounding the matter; the size of the farm; the probable needs of such a farm; the ordinary uses that a farm requires a well for in this neighborhood, — to determine what was in the minds of the partiés, what they contemplated when this well should be put there.” We find no error in this instruction. The court seems to have very fairly and fully presented the question to the jury as to the kind of á well required to fulfill the terms of the contract.
The other instructions excepted to and assigned as error, in our opinion, stated the law cori’ectly, and fairly presented