Capps v. Ratcliff, 6539

• Decision Date: 23 June 1959
• Docket Number: No. 6539,6539
• Citation: 1959 NMSC 53,340 P.2d 1073,66 N.M. 22
• Parties: Floyd CAPPS, Plaintiff-Appellee, v. John RATCLIFF, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1073

340 P.2d 1073

66 N.M. 22

Floyd CAPPS, Plaintiff-Appellee, v. John RATCLIFF, Defendant-Appellant.

No. 6539.

Supreme Court of New Mexico.

June 23, 1959.

Rehearing Denied July 9, 1959.

Emmett C. Hart, Tucumcari, for appellant.

Charles J. Gerhardt, Santa, Rosa, for appellee.

McGHEE, Justice.

The plaintiff and defendant entered into an oral contract whereby the plaintiff was to pull the casing in an existing water well and to deepen it with an eight inch hole until stopped by the defendant.

The plaintiff claimed that he had been stopped in his work and that under the contract the defendant was indebted to him for drilling 233 feet as follows: Five feet at $2 per foot, 100 feet at $2.50 per foot, 100 feet at $3 per foot, and 28 feet at $3.50 per foot. The plaintiff further claimed that with the knowledge and acquiescence of the defendant he performed additional services as follows: Setting drilling mechine $25; lowering tower $25; work on casing $30; putting windmill back over hole $80; surging well $40, and cleaning out the well after it had been shot by the defendant $55.

It was also agreed that the plaintiff would drill a second well for the defendant. He moved his machinery to the location designated by the defendant and began to drill but after drilling only a few feet the defendant ordered the work stopped. For such work the plaintiff asked the sum of $100 plus $2 tax.

The suit was based on contract and there was much testimony offered to support the claimed contract, but there was also testimony as to the value of the extra work, as well as proof to support an account stated. All this evidence was introduced without objection by either party.

The trial court found there was an account stated, the basis of which was a statement rendered by the plaintiff to the defendant for $931.75 on the first well, less a credit for a payment of $125, and for the sum of $100 plus $2 tax for setting up the rig over the second location, making the total amount due the plaintiff the sum of $908.71, for which judgment was rendered.

In his efforts to secure a reversal, the defendant urges upon us that the complaint alleged only a cause of action in contract, and that nothing was said about an account stated. He further urges upon us his contention that there is no testimony in the record to support the finding of the trial court that there was in fact an account stated.

As above indicated, there was no objection on the part of the defendant to evidence introduced by the plaintiff that after a difficulty at the home of the defendant, as a result of which the parties wound up in the justice court at Santa Rosa where the defendant was charged with assault and battery, there was a conversation between the parties in which they were attempting to adjust their differences. There is testimony by the plaintiff and his brother, as well as some evidence from the...