West v. McDonald, 136 P. 650

West v. McDonald

136 P. 650 | Or. | 1913

En Banc.

Mr. Justice Burnett

delivered the opinion of the court.

This is a second appeal in this case, and for a particular statement of the issues involved it is sufficient to refer to 64 Or. 203 (127 Pac. 784). In brief, it is enough to say here that the plaintiff declares for labor and services furnished at the special instance and request of the defendant in boring a well to a depth of 350 feet at the reasonable value of $1.50 per foot. The defendant denies this, and alleges that the parties contracted for a finished well supplying an adequate flow of water at a price of $1.50 per foot, but not in any event to exceed the total of $150.

1. In the argument, sundry objections to rulings upon the reception of testimony are pressed upon our *553attention. We decline, however, to consider these on the ground that what is termed a hill of exceptions is nothing more than a literal statement of everything that was said by court, counsel and witnesses at the trial. This has been so often held not to be a bill of exceptions that it is tautological to repeat the statement. In a manner Mr. Justice Slater, began a new series of decisions on this subject in Keady v. United Rys. Co., 57 Or. 325 (100 Pac. 658, 108 Pac. 197), and we have since added Hahn v. Mackay, 63 Or. 100 (126 Pac. 12, 991), and Portland Public Market & Cold Storage Co. v. Woodworth, ante, p. 327 (135 Pac. 529).

We are not unmindful of the amendment of Section 171, L. O. L., enacted by the legislative assembly February 28, 1913, reading thus: “No particular form of exceptions shall be required. The objection shall be stated, with as much evidence, or other matter, as is necessary to explain it, but no more; provided, however, that the bill of exceptions may consist of a transcript of the whole testimony and all of the proceedings had at the-trial, including the exhibits offered and received or rejected, the instructions of the court to the jury, and any other matter material to the decision of the appeal”: Laws 1913, p. 650. It was pointed out in Hahn v. Mackay, 63 Or. 100 (126 Pac. 12), that the bill of exceptions proper consisted, in the meaning of the statute, of an exemplification of only so much evidence, and no more, as is necessary to explain the point of the objection. It was further explained that qualifications of this rule consisted in the inclusion of the whole testimony for the plaintiff on a motion for a non-suit, or the entire testimony on both sides of the case on a motion for a directed verdict, where the ruling on these questions was assigned as error, but that such bills of exceptions will not be considered for any other purpose. If the legislation adverted to had been intended for anything more than a statutory declaration *554of the doctrine thus announced, it would have omitted the original terms of Section 171, L. O. L. But it has retained that identical language, and the words employed mean the same as they have often been construed by the decisions of this court. The proviso added must be construed to cover the exceptions established by our decisions, and can mean nothing more than that in proper cases where the same is necessary to determine the correctness of the ruling upon a motion for a nonsuit or a motion to direct a verdict at the close of the whole case, the bill of exceptions may consist of a transcript of all the proceedings. Containing as it does the very words of the former statute, we cannot depart from the construction placed upon them by so many decisions, amounting at least to a rule stare decisis. Hence we must decline to consider the objections urged in the brief to the admissibility of testimony in various instances occurring during the progress of the trial.

2. There are, however, sundry exceptions taken to the instructions of the court to the jury which may be tested by the standard of the pleadings appearing-in the abstract. These we can properly consider, for the necessary data are regularly before us. Substantially, the plaintiff says for his cause of action that he was employed to serve the defendant in the latter’s quest for water by boring into the earth, and that his services were reasonably worth $1.50 per foot, amounting in the aggregate to $525, which has not been paid. Opposing this, the defendant denies the allegations of the complaint and says that he employed the plaintiff to produce a finished well yielding an adequate supply of water, and that without fault of the defendant the plaintiff abandoned this entire undertaking before its completion. The question turns upon the definition of the term “well,” as applied to the contention of each party. If the plaintiff was not responsible for *555the results of the excavation, it can be said properly that a well meant nothing more than a mere hole in the ground, for the services in digging which the plaintiff would be entitled to recover on the quantum meruit, in the absence of an express agreement. The court left to the jury the question of determining what the parties meant by digging a well. This presented plaintiff’s theory of the case. On the other hand, the court said, in the course of its charge, that, “in using the word ‘well’ in these instructions, I mean a hole sunk or drilled into the earth to such a depth as to reach a supply of water.” This is a permissible definition of the term. “A well consists of a pit sunk in the earth until a water-bearing stratum of the earth is reached, from which the water therein will flow into the pit, and a supply of water be thus obtained”: Andrews v. Carman, 1 Fed. Cas. No. 371, p. 868. Again it is said in Magoon v. Harris, 46 Vt. 264: “The places where the defendant reached water by orifices in the ground, and where the water did not flow to the . surface, are wells, and not springs.” To avoid the circumlocution of repeating the definition in terms, wherever the word was used in his subsequent instructions, the judge defined it once and for all in his instruction relative to the defendant’s side of the case. It was not intended to be conclusive upon the plaintiff, and a fair construction of the charge will not justify such a construction. Properly considered on that-point, the court said in substance to the jury: If you find that the contract contemplated a finished well yielding an adequate supply of water, and that the compensation should not, in any event, exceed a specified sum, the plaintiff cannot recover until he has fully performed his contract and produced such a well.

3. The court, however, was in error in giving the following instruction: “I instruct you further that the plaintiff in this case has shown himself to be an expert *556well driller, of many years ’ experience, and has drilled a large number of wells in the Grande Eonde Valley, and if yon find from a preponderance of the testimony that he entered into a contract with McDonald either as an individual or as the representative of the farmers subscribing to a fund for drilling a well, that he would drill a well for $1.50 per foot, using l^-inch casing, himself furnishing all of the materials and machinery for such purposes, that this agreement was not complied with, unless he got a sufficient supply of water; and, when he abandoned the work without having obtained such supply of water, the defendant had a right to rescind the contract, and adopt other means for getting a supply of water, and the plaintiff cannot recover anything from the defendant in this case.” This instruction was erroneous in that it assumed as a proven fact that the plaintiff abandoned the work without having obtained a supply of water. This was a clear invasion of the province of the jury upon a vital point of the case. It took for granted the verity of the traversed allegations of the answer. It is objectionable, also, in that it says to the jury “that the plaintiff in this case has shown himself to be an expert well driller of many years’ experience,” etc. This might have been a legitimate deduction to be used by counsel in discussing the case to the jury, but it has no proper place in the charge of the court. That the assumption of a disputed fact is erroneous when coming from the court is taught by the following authorities: Salomon v. Cress, 22 Or. 177 (29 Pac. 439); State v. Bock, 49 Or. 25 (88 Pac. 318); Keen v. Keen, 49 Or. 362 (90 Pac. 147, 14 Ann. Cas. 45, 10 L. R. A. (N. S.) 504).

This conclusion leads to a reversal of the case for a new trial. Eeversed.

Mr. Justice Bean concurs in the result.