Bates v. Harte

• Decision Date: 15 November 1899
• Citation: Bates v. Harte, 124 Ala. 427, 26 So. 898 (Ala. 1899)
• Parties: BATES v. HARTE.
• Court: Alabama Supreme Court

26 So. 898

124 Ala. 427

BATES v. HARTE.

Supreme Court of Alabama

November 15, 1899

Appeal from circuit court, Colbert county; Thomas R. Roulhac, Judge.

Action by F. E. Harte against Thornton Bates. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought by the appellee, F. E. Harte, against the appellant, Thornton Bates, to recover a certain amount alleged to be due the plaintiff from the defendant for services rendered in boring and casing a well on the defendant's premises. The plaintiff claimed a mechanic's and material man's lien under the statute for work and labor done and material furnished in drilling and casing said well. A statement of his account, as provided by the statute, was filed by the plaintiff in the office of the judge of probate within the time required by statute for the purpose of perfecting a material man's lien. The complaint set forth the cause of action, and averred the filing of the statement of the account in the probate office and claimed the lien for work and labor done and material furnished. The defendant demurred to the complaint upon the ground that the boring of the well and the casing of it was not such an improvement upon the land as the statute gave a lien for. The court overruled this demurrer, and to this ruling the defendant duly excepted. This ruling constitutes the basis of the first assignment of error. The defendant pleaded the general issue, and, by special plea, that the plaintiff was not entitled to recover, on the ground that under the contract between the plaintiff and the defendant the plaintiff guarantied to get the defendant a sufficient supply of water for use on his farm, and that the plaintiff had not complied with this part of his contract. On the trial of the case the plaintiff introduced the statement of his account filed in the probate office for the purpose of perfecting his mechanic's lien. The defendant objected to the introduction of this statement upon the ground that the statute provided no lien for boring a well. The court overruled this objection, and allowed the statement to be introduced in evidence, and to this ruling the defendant duly excepted. This ruling constitutes the basis of the second assignment of error. The plaintiff, as a witness in his own behalf, testified that the defendant came to see him, to engage his services in boring a well on his farm; that he (the plaintiff) told the defendant that he would bore the well for $1.50 per foot in dirt, and for $2 per foot when boring through rock, and that this price included the casing of the well; that this price was acceptable to the defendant who also agreed to furnish wood and water to work the plaintiff's engine, and one hand to help in boring the well. The plaintiff then testified that he drew up the following contract in duplicate, which was signed by himself and by the defendant, making his mark: "Nov. 25, 1896. I agree to drill for water for Thornton Bates at and for $1.50 per foot, and to case the same at and for nothing per foot until I strike stone. Then I am to receive $2.00 per foot for stone. [Signed] F. E. Harte." In reference to the execution of this contract, the plaintiff testified that he read the contract over to the defendant, and then wrote the defendant's name, to which he affixed his mark, but that at the time of such signature there was no one present except the plaintiff and the defendant. The defendant objected to the introduction of this contract in evidence as copied above, upon the ground that the defendant could not write and that his signature by his mark was not witnessed by a person who wrote his own name. The court ruled that so much of said contract as was signed by Harte was admissible in evidence, and excluded the portion of the contract which was signed by the defendant by making his mark. The defendant then objected to this ruling, and moved to exclude from the jury that part of the contract signed by the plaintiff because said contract was an entirety and could not be divided, and was admissible as a whole or not at all. The court overruled this objection, and the defendant duly excepted. The plaintiff also testified that the well was bored according to the contract, and contained 20 feet of water. The defendant, as a witness in his own behalf testified that the contract made between him and the plaintiff was not such as was contained in the writing which was introduced in evidence; that the plaintiff guarantied a good and sufficient supply of water for use on his farm, and that he (the defendant) was to pay him $1.50 per foot for boring through both dirt and rock; that when he signed said writing by making his mark the plaintiff did not read it to him, and that he (the defendant) could not write; and that upon the plaintiff telling him that it was the contract as made between them, he signed it upon such representation. The defendant then testified that there was no sufficient water in the well for any purpose, and that he had to have water for his household use and otherwise brought from a neighbor's place. There was other evidence introduced on the part of the defendant to show that there was not a good supply of water in the well bored by the plaintiff. In rebuttal the plaintiff introduced witnesses who testified to having drunk water from said well, and that it was pure water and in abundance. The court, at the request of the plaintiff gave to the jury the general affirmative charge. To the giving of this charge the defendant duly excepted, and also separately...