Buffington v. Henton

• Decision Date: 29 August 1912
• Parties: BUFFINGTON et al. v. HENTON et ux.
• Court: Washington Supreme Court

126 P. 58

70 Wash. 44

BUFFINGTON et al. v. HENTON et ux.

Supreme Court of Washington

August 29, 1912

Department 1. Appeal from Superior Court, Yakima County; Thos. E. Grady Judge.

Action by J. T. Buffington and others against S. A. Henton and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. M. Dunn, of Sunnyside, for appellants.

G. T Mogan, of Mabton, for respondents.

GOSE J.

On the 1st day of September, 1910, the plaintiffs and the defendant husband entered into the following written contract 'Sunnyside, Washington, 9/1, 1910. This contract and agreement entered into between A. S. Henton, party of the first part, and J. T. Buffington & Son, parties of the second part. The parties of the second part agree to drill a 5 3/8 inch well for consideration of $2.75 per ft. for the first 100 ft.; $3.00 per ft. from 100 to 150 ft.; and $3.25 from 150 to 200 ft. The parties of the second part agree to furnish all fuel, board, and move the machinery. The party of the first part to furnish all casing and to pay $300.00 cash when well is accepted, and to give note for balance, payable in six (6) months from date of completion. [Signed] J. T Buffington & Son. S. A. Henton.' This action was brought to recover an alleged balance due of $225.75 and interest. It is alleged in the complaint that on the 21st day of November, 1910, when the well had been drilled to a depth of 181 feet, sand was encountered, and that it became necessary to have casing for the well, in order to prevent caving and to enable the plaintiffs to continue drilling; that the defendants refused to furnish the casing, and directed the plaintiffs to discontinue the drilling; and that they did so. It is further alleged that the defendants paid the $300 cash stipulated in the contract, and that they refused to give the promissory note for the balance due, as provided therein. The defendants denied that it became necessary to have casing, denied that they refused to furnish it, denied that they directed the plaintiffs to discontinue drilling, admitted that they paid the $300, and that they refused to give the note, but did not deny that the well had been drilled to a depth of 181 feet. When upon the witness stand, the defendant husband admitted that the well was drilled to a depth of 181 feet, but stated that at that time--June, 1911--it had caved in to the extent of 30 feet. The court instructed the jury that, if 'pursuant to said contract the plaintiffs entered upon the performance thereof and drilled a well 5 3/8 inches in diameter to a depth of 181 feet, and that upon reaching said depth of 181 feet the defendants either failed to furnish casing to go to a further depth, upon demand being made for same by plaintiffs and the lapse of a reasonable time within which to furnish it after such a demand, if any, if you shall find by a fair preponderance of the evidence that casing was necessary to drill any deeper, or that upon reaching said depth the defendants, or either of them, requested the plaintiffs to cease drilling, and if you further find that the defendants have failed to pay for said drilling at the contract price, or refuse to give a note for the balance due over the sum of $300, then your verdict will be for the plaintiffs.'

The defendants requested the following instruction, which the court refused: 'If you believe from the evidence that the defendants requested plaintiffs to stop drilling at 181 feet as alleged in the complaint, and that plaintiffs thereupon ceased work pursuant to said request, and if you find that the well was not then completed and finished according to the contract, and that other work was necessary before the well could be finished according to the contract, such as pulling out the casing theretofore driven in the well, and...