Curtis v. Wilkins, 49187

• Citation: 248 Iowa 1314,85 N.W.2d 546
• Decision Date: 15 October 1957
• Docket Number: No. 49187,49187
• Parties: W. E. CURTIS, Appellant, v. Lorain H. WILKINS, Appellee.
• Court: United States State Supreme Court of Iowa

Page 546

85 N.W.2d 546

248 Iowa 1314

W. E. CURTIS, Appellant, v. Lorain H. WILKINS, Appellee.

No. 49187.

Supreme Court of Iowa.

Oct. 15, 1957.

B. C. Sullivan, Rockford, for appellant.

Mason & Stone, Mason City, for appellee.

WENNERSTRUM, Justice.

Plaintiff sought judgment against the defendant claiming the sum of $357 was due him for digging a well. The case was tried to the court, neither party having asked for a jury. Plaintiff's petition was in two counts. In the first one it was alleged there was an expressed contract for digging a well 102 feet deep and in which the sum of $357 was claimed. Count two of plaintiff's petition alleged the plaintiff performed services at defendant's request which were reasonably worth the sum of $357. At the conclusion of plaintiff's evidence the defendant made a motion to dismiss count two of plaintiff's petition which was sustained. After final submission of the cause the trial court found the parties had entered into a contract for a well not to exceed 30 feet in depth and at a price of $3.50 per foot. The court entered judgment against the defendant for the sum of $105 and costs to the date of trial. The plaintiff has appealed.

The facts as developed by the evidence are determinative of this case. There were really only two witnesses, the plaintiff and defendant. The plaintiff's son was a witness but he did not testify to any details of the claimed contract. The plaintiff, in his testimony, stated the defendant, when he originally conferred with him, informed him he wanted to get a well at a depth of 25 or 30 feet. The plaintiff also testified: '* * * I told him I didn't think it was possible up where he wanted it, and that is the way it went for, * * * he called me that night and told me he didn't think he would have it done, and a while after that he told me he was ready for it, * * * I went over and we drilled 102 feet for him and he stopped me. * * *' On cross examination the plaintiff further testified: '* * * He wanted to get water at 25 or 30 feet. * * *' He also testified: '* * * After we got down to about 50 feet he told me to keep drilling. We were probably there about four or five days * * *'. Regarding this second conversation the plaintiff stated: 'When I had the second conversation over at the farm with Lorain Wilkins there was no one else present besides myself. * * *' Lyle Curtis, a son of the plaintiff, who was assisting his father in the well digging testified: '* * * I didn't really hear any conversation my father had with Lorain but I did observe my father and Mr. Wilkins talking at various times during the well drilling but I am not aware of what was actually said. * * * because of the noise of the machine I didn't hear much of the conversation between my father and Mr. Wilkins.' The plaintiff was asked whether at the time when he had gotten down to 30 feet he told Wilkins, the defendant, water had not been obtained and in answer to this inquiry the plaintiff replied: 'Well, I don't remember.'

The defendant testified concerning the agreement in part as follows: '* * * We talked about what we would want and stated for a job around 30 feet we agreed on and talked on. I wanted water for cattle. I didn't want to drink it. I wanted cow water. He said if he used some old casing he could do it for $3.50 per foot. I told the plaintiff he was not to go down any deeper than 30 feet. * * *' The defendant also testified: '* * * I didn't have any conversation with Mr. Curtis when he was down 50 feet. I had a conversation with Mr. Curtis on the telephone. I asked him how far down he was and he said we don't know for sure but we estimate about 102 feet. I said, 'Golly we better call it quits there, I couldn't use my pump on that depth.' And he was gone in a day or two. Mr. Curtis never told me he was down more than 30 feet. I never had any conversation with Mr. Curtis at any time to drill a well on that farm regardless of depth. He agreed to stop at 30 feet. Mr. Curtis never told me he had gone below 30 feet.

I. It is the claim of the plaintiff the trial court committed error in sustaining the defendant's motion to dismiss court two of plaintiff's petition at the close of his case. In defendant's motion it was contended there was no competent evidence which would sustain the allegation in the count, and there was no evidence which would entitle the plaintiff to recover on the theory therein pleaded.

It is true a party may plead causes of action in separate counts. Maasdam v. Estate of Maasdam, 237 Iowa 877, 885, 24 N.W.2d 316; Russell v. John Clemens & Co., 196 Iowa 1121, 1122, 195 N.W. 1009. However, the fact situation supports the ruling of the trial court. There was no substantial evidence which would support plaintiff's theory of an implied contract or recovery on the basis of a quantum meruit agreement. There must be substantial supporting evidence to justify submitting an issue to a jury when a case is tried to one. And when a jury is waived and the fact questions are to be determined by a court the same situation is presented. The trial court had the same responsibility in the instant case to limit the issues if not supported by substantial evidence as it would have had if the case had been tried...