Council v. Teal
| Decision Date | 01 February 1905 |
| Parties | COUNCIL v. TEAL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. In the absence of a stipulation to the contrary, one who obligates himself by written contract to bore an artesian well for another is at liberty to fulfill his engagement through workmen over whom he places a superintendent to direct how the work shall be done, and is under no obligation to himself perform any of the labor or to give his personal attention to the work.
2. Where the contractor signs the contract in his own name as an individual, he may properly bring suit thereon against the other party to compel payment for the work done notwithstanding the contractor may have been in partnership with a third person who superintended the boring of the well and who, under a private understanding between them, was to share in the profits realized from the undertaking.
3. Though the boring of the well was continued after water had been reached, the party for whom it was being drilled cannot complain that work was not then stopped at his request and the water tested, when he deferred to the opinion of the superintendent that the supply was insufficient, and permitted him, without further objection, to carry on the work; and this is true notwithstanding a sufficient supply of water was subsequently obtained at the same depth by boring another well at a point but a short distance away.
4. When error is assigned on the refusal of a trial court to allow a witness to be interrogated touching a given subject, it is incumbent on the excepting party to disclose what facts he sought to elicit from the witness, in order that it may appear whether the testimony rejected was relevant to the issue and would have been beneficial to the party offering the same.
5. When a jury fails to reach a verdict because one of the jurors is wedded to his own opinion concerning the law of the case and refuses to apply to the facts thereof the law as given in charge by the court, it is proper for the trial judge, on being advised as to why the jury are unable to agree, to instruct the jury that they are bound by their oaths as jurors to take the law from the court and from no other source.
(a) For no reason assigned by the plaintiff in error did the court err in the instructions given the jury upon this subject.
6. The evidence warranted the finding in favor of the prevailing party.
Error from City Court of Americus; C. R. Crisp, Judge.
Action by H. R. Teal against M. B. Council. Judgment for plaintiff and both parties bring error. Judgment on main bill of exceptions affirmed, and cross-bill of exceptions dismissed.
On August 30, 1900, H. R. Teal and M. B. Council entered into a written contract under the terms of which the former was to drill an artesian well on the farm of the latter, commencing with casing 4 1/2 inches in diameter, and finishing with casing as large as practicable, the work to be commenced as near the 1st of October as practicable, and to be pushed to completion as fast as practical. It was stipulated in this contract that Teal did not guaranty the well "to flow above the surface," but was to be paid "one dollar per foot for all the depth of well drilled," and that Council was to furnish the necessary casing, and was to board three men while doing the work. The well was commenced and partially completed under this contract. On July 3, 1901, Teal instituted an action against Council, alleging that, after the well had been drilled to a depth of 451 feet, the defendant declined to furnish any more casing, and plaintiff was in consequence compelled to abandon the work; that defendant was indebted to him in the sum of $451 under the contract rate of $1 per foot for all the depth of well drilled, and also in the sum of $5.80 for certain material furnished at defendant's request, which amounts the defendant refused to pay. An answer was filed by Council, in which he admitted the execution of the written contract, a copy of which was attached to the plaintiff's petition, but asserted that the writing did not set forth the entire contract, and that he had not committed the alleged breach thereof, nor was he indebted to the plaintiff in any amount save as to the item of $5.80 for material furnished. The defendant also filed a special plea, wherein he averred that the plaintiff had himself in various particulars violated the contract, that the well had not been drilled in a skillful or workmanlike manner, was totally worthless, and that the plaintiff's failure to perform his obligations under the contract had endamaged him (the defendant) in the sum of $1,000. A portion of this plea was, on demurrer by the plaintiff, stricken by the court, and the defendant filed exceptions pendente lite to its judgment. Like exceptions were filed by the plaintiff to the refusal of the court to strike other portions of the defendant's plea. The case was then tried on its merits, and resulted in a verdict for the plaintiff, whereupon the defendant made a motion for a new trial, which was overruled. He sued out a bill of exceptions, in which he assigns error on striking part of his special plea, as well as upon the judgment overruling his motion for a new trial. The plaintiff, in a cross-bill of exceptions, complains of the refusal of the court to strike other portions of this plea.
1. The defendant stated in his plea that he "expected and understood" that the plaintiff would give his personal attention to the boring of the well, and that one inducement for making the contract was the reputation of the plaintiff in regard to boring artesian wells; but the plaintiff instead of giving personal attention to the matter, turned the same over to one Brewer, who was of a disagreeable and arbitrary disposition, and from whom defendant could get no satisfaction in regard to the progress of the work. The court very properly struck this allegation. The defendant did not undertake to aver that the plaintiff had agreed to give personal attention to the work, nor to have it done by an agent whose disposition was irreproachable, and from whom the defendant "could get satisfaction"...
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