Frazer v. Ennis

Urner, J., delivered tbe opinion of tbe Court. In December, 1930, tbe plaintiffs agreed orally with tbe defendants to drill an artesian well on tbe farm owned by tbe latter, as tenants by tbe entireties, in Cecil County. Tbe stipulated price for tbe work was three dollars per foot. Tbe drilling began in January, 1931.

A sufficient supply of water was found at a depth of 110 feet, but it contained a very fine sand which could not be eliminated by tbe use of a strainer in tbe pipe. When an attempt was made to sink tbe well to a deeper level, tbe casing was broken and tbe work at that point bad to be abandoned. A second well having been drilled to a depth of 310 feet, and tbe water obtained from it being unusable because of tbe presence of sand, tbe defendants stopped tbe work until they could have a conference with tbe plaintiffs, after wbicb tbe drilling was continued until tbe well was 420 feet deep. Tbe water produced being still objectionable because of tbe fine sand wbicb it contained, tbe work ³⁵³ on that well was suspended.

A third well was then drilled at a lower point remote from the others, under an agreement that the work should stop at a depth of 40 feet, and that the price should be two dollars per foot. The same water condition haying been found in that well, the work there was discontinued. An unsuccessful effort was then made to improve the spring near which the third well was located. After the termination of that work, the plaintiffs, at the request of the defendants, tried by pumping to clear up the water in the second well.

That operation continued at intervals, for several weeks, but ended in recognized failure, on May 14th, 1931. The drilling work had stopped on the 25th of the previous month. A payment of $500 on account of the work was made by the defendants to the plaintiffs on May 9th, 1931. There is no claim by the plaintiffs for the drilling of the first well or for the last 50 feet of the second, but they have sued for the agreed price of three dollars per foot for 370 feet of drilling in that well, for 40 feet in the third at two dollars per foot, for the work on the spring, and the subsequent pumping at the second well, for which it was agreed that they should be paid “on a time, labor and material basis,” and for two independent items which are not disputed, the total of the claim in suit being $1,431.60, less a credit of the $500 paid on account of the well project.

A verdict in favor of the plaintiffs was rendered for the balance thus claimed. Of the six exceptions taken at the trial only five are pressed on appeal. Four of these relate to the admissibility of testimony, and one to the action of the court on the prayers. The defendant who made the partial payment to the plaintiffs was asked a series of questions in regard to- the circumstances under which the payment occurred.

It was made with a check drawn to the paying defendant’s order by a corporation which he controlled, the check being indorsed by him to the plaintiffs’ order with a notation that it was “part payment on artesian well.” The defense which he was making for himself and his wife as codefendant was that the agreement ³⁵⁴ by the plaintiffs for the well-drilling work included a guaranty “to clear up, develop and make usable any water that might be-found or located” in the course of that operation. In the . effort to neutralize the significance of a substantial payment on account at a time when the drilling had been finished, but the water had not been made usable, the defendant who made the payment was asked the questions to which the first four exceptions refer. It appeared from the testimony that he indorsed the check as prepared by Mr. Dougherty, the treasurer of the corporate drawer, who then transmitted the check to the plaintiffs. The argument in support of the exceptions now under consideration is that the adverse rulings prevented the witness from testifying that an unqualified delivery of the check was not authorized.

But the record shows that such an opportunity was afforded when the inquiries were repeated. The witness was allowed to be asked whether he ever authorized the delivery of the check, and under what circumstances or for what reason he indorsed it, and what were his instructions as to when it was to be delivered.- In reply to the last question he stated that he could not recall-having given any instructions at thaf time. The answers to the other permitted questions on the subject were consistent with that statement. There was consequently no apparent injury to the defendants resulting from the rulings on the evidence exceptions.

In granting the first prayer of the plaintiffs the court instructed the jury that, “if they find from the evidence that the defendants agreed to- pay the plaintiffs three dollars per foot for drilling an artesian well, and that in digging said Well a sufficient supply of water was found at a depth of 110 feet, but in the judgment of the plaintiff the water could not be cleared of sand; and that at the suggestion of p-laintiffs the defendants acquiesced in drilling deeper with the hope of finding better water at a greater depth; and that by reason of the breaking of the casing, it became necessary to start a new well, and that when a depth of 330 or 370 feet was reached there was a consultation between the plaintiffs and defendant, J. Stanley Frazer, and it was agreed that