Cunningham v. Elvins

• Decision Date: 24 April 1917
• Docket Number: No. 2012.,2012.
• Citation: 194 S.W. 515
• Parties: CUNNINGHAM v. ELVINS.
• Court: Missouri Court of Appeals

194 S.W. 515

CUNNINGHAM v. ELVINS.

No. 2012.

Springfield Court of Appeals. Missouri.

April 24, 1917.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action by George W. Cunningham against Politte Elvins. Judgment for plaintiff, and defendant appeals. Affirmed.

Henry Davis, of Farmington, for appellant. F. A. Benham and B. H. Boyer, both of Farmington, for respondent.

FARRINGTON, J.

The plaintiff recovered a judgment against defendant for an amount alleged to be due for drilling a well on defendant's property. His petition was in two counts. The first count was based on an express contract, it being alleged that it was agreed between plaintiff and defendant that the defendant employed plaintiff to drill a well on his property, and that the contract price was to be $1.25 per foot for the first 100 feet, 25 cents per foot additional for the next 100 feet, and 25 cents per foot more for each additional 100 feet. It is averred that the well was completed by plaintiff under the contract, being 576 feet in depth, and that the amount due plaintiff for the drilling (and $4.50 for casing, which was also to be furnished by defendant) was $1,069.50, plaintiff alleging that he had faithfully performed the terms of the contract, and had been paid the sum of $720, and asking judgment for the balance, $349.50. The second count is grounded on a quantum meruit, setting forth the item of $4.50 for the casing, and the claim of $1.25 per foot for the first 100 feet, and so on, alleging the total reasonable value of the work and labor done and material furnished to be $1,069.50. In this count plaintiff also gives credit for $720 paid, and asks judgment for $349.50.

The defendant answered setting up a special contract, and alleged that the contract price for drilling the well was to be a flat rate of $1.25 per foot, and admits that the well was 576 feet deep, and pleads payment of $1.25 per foot, or $720, as full payment. Defendant also pleaded a counterclaim, setting up that the well was drilled crooked, so that it would not accommodate larger than a 3-inch casing, that the well was not cleaned out, and that defendant was put to the cost of $500 because of plaintiff's unskilled workmanship, and because of plaintiff's failure to comply with his contract; for which defendant asks judgment for $1,220.

The judgment was in favor of the plaintiff on the second, or quantum meruit, count of his petition. The jury found against the defendant on his counterclaim, but no mention was made of the counterclaim in the judgment rendered. At the close of plaintiff's case defendant filed a motion to require plaintiff to elect on which count of the petition he would stand, and on such motion the court ruled with the defendant, and plaintiff thereupon elected to stand upon the quantum meruit count.

The evidence for plaintiff is that he was called to the defendant's office and asked about digging a well, and that he explained to defendant that the usual price for drilling a well was by a rising scale or step rate, and that he told defendant it would cost $1.25 per foot for the first 100 feet, $1.50 per foot for the second 100 feet, and so on, and that defendant said, "Well, your price is all right," and that it was agreed that plaintiff would begin work, which he did. It is shown by the plaintiff that while the well to be drilled was what is known as a 6-inch well, one drilled with a 5 5/8-inch bit (the size used) makes what is commonly called a 6-inch well. It is also in evidence that after plaintiff had drilled some 300 feet his drilling machinery became hung in the hole, and he on agreement with defendant abandoned the work for the time being, but that afterward he brought a larger drilling outfit and completed the well to a depth of 576 feet. Plaintiff's evidence further showed that this well was drilled in a workmanlike manner, and that the ordinary price for digging such a well was on the rising scale or step rate plan — that is, $1.25 per foot for the first 100 feet, and 25 cents per foot additional for each additional 100 feet, and that such price was the reasonable worth of this service in this case.

Defendant's evidence tended to show there was a special verbal contract for a flat rate of $1.25 per foot; that the well was not cleaned out properly; and that it was crooked and would only accommodate a 3-inch pipe which was not sufficient for the purposes contemplated by both parties when the work began. On his counterclaim he introduced evidence that he was put to expense, owing to the manner in which plaintiff had done the work, but his evidence entirely fails to show the amount of his damage. The case is one where both parties claim there was a...