Davis v. Farmers Pump Co.

• Decision Date: 28 May 1970
• Docket Number: CA-CIV,No. 2,2
• Citation: Davis v. Farmers Pump Co., 469 P.2d 844, 12 Ariz.App. 278 (Ariz. App. 1970)
• Parties: Simon J. DAVIS and Arlie S. Davis, doing business as Davis Brothers, Appellants, v. FARMERS PUMP COMPANY, Inc., an Arizona Corporation, and V. W. Owens, Appellees. 704.
• Court: Arizona Court of Appeals

Page 844

469 P.2d 844

12 Ariz.App. 278

Simon J. DAVIS and Arlie S. Davis, doing business as Davis Brothers, Appellants, v. FARMERS PUMP COMPANY, Inc., an Arizona Corporation, and V. W. Owens, Appellees.

No. 2 CA-CIV 704.

Court of Appeals of Arizona, Division 2.

May 28, 1970.

Rehearing Denied June 30, 1970.

Anderson, Welker & Flake, by Dudley S. Welker, Safford, for appellants.

Johnson, Darrow, Hayes & Morales, by J. Mercer Johnson, Tucson, for appellees.

KRUCKER, Judge.

The Davis Brothers owned 160 acres of farming land near Willcox, Arizona. In 1964 they had a well drilled to 1,400 feet. Thereafter, they hired Farmers Pump Company to test the new well as per a written memorandum admitted into evidence dated April 17, 1964. The substance of this original agreement, and this is confirmed by the defendant, is that Farmers Pump was to well test Davis' new well for an estimated $375. (They were actually billed $653, Invoice No. 8143.) Farmers moved onto the land and commenced testing in May. The soil conditions in the well, however, prevented conclusive testing because back-flushing had to be used to keep debris from entering the pump and no continuous pumping could be achieved. When the test equipment was finally pulled up, the tail pipe or suction was gone, apparently lost in the well.

When the owner of the pump company, Mr. Owens, heard of this he told the Davises he would send someone over to pull out the suction. Mr. George Webb arrived and worked a month. He contacted the pipe numerous times, but was unable to remove it. Mr. Webb's labor was never originally intended to be charged to plaintiffs, as defendant testified, because Owens felt then he should see that the pipe was removed. The total bills for this month's work were $1,809, for three invoices, Nos. 9544, 9545, and 9547. None of this expense was contemplated by the testing agreement, nor did a later written agreement specifically cover it retroactively.

Finally, as June arrived and irrigation needs arose, the Davis Brothers and Owens agreed to postpone the search and set up the well for the irrigation season, and then return and start the search again after the harvest. To fix their agreement, the parties entered into a written agreement which, in part. ¹ reads:

'Farmers Pump Co Inc. agrees to pull customers pump 200 ft of 8 and reset same. As well as pay for time to drill up or remove 10 ft. of 10 Tail Pipe.

Davis Bros. agree pay for liner to go to Bottom of well and clean out to the suction and from suction to bottom as well as running liner and set up and tear down time on clean out rig.

Should Suction move down with clean out Davis Bros pay only for time taken prorata to clean out to the suction. Set up and tear down not to exceed $100.00.'

Immediately thereafter, in June, several bills were incurred in pulling and setting a pump over the well to use for the summer's irrigation. It ran at just under 900 gallons a minute. Mr. Owens, the pump company owner, testified as to this oral agreement, although the formal agreement says nothing about it, as he admits. The costs were billed to the Davis Brothers in the amount of $988, invoices Nos. 8156, 8179, 8137, 8195, and 8295.

Finally, at the end of the season, in October, Mr. Earl Lohn rendered his services for 1,200 feet of lining, for cleaning the well, and for searching for the pipe in order to remove it. The entire bill was then submitted to the plaintiffs in the amount of $6,030.22, invoices Nos. 9093, 9077, 9548, 9553, and 9456. Mr. Owens was asked why he did not delete that portion of the charges attributable to removing the pipe. He replied there were no such charges because the pipe was never found and no drilling out of the pipe occurred. Davis Brothers did pay $300, invoice No. 9206, to this account for the liners as agreed to in the agreement.

When all the work was done, Farmers Pump submitted as bill to Davis Brothers for all of the work done, having determined its share of the cost, i.e., drilling up the tail pipe, never came into play because the pipe was never found. Davis Brothers then sued defendants Farmers Pump and its owner, Mr. Owens, in tort and contract. Defendants counterclaimed for lobor, materials, and attorney's fees under their written agreement. The trial court, sitting without a jury, awarded $2,500 in attorney's fees. It also reviewed the evidence and awarded defendants their counterclaim, minus $574.70 worth of expenses which Mr. Owens admitted had been double charged, making an award of $8,605.51 plus interest. A 'letter of findings' signed by the judge on May 20, 1968, acknowledge these specific amounts in reducing the damages owed. The Webb job was cut by $128 for time tickets 3353 (incorrectly cited in the letter as 3343) and 3385 on invoice No. 9545. The Lohn job was cut by $546.70 from invoices Nos. 9456 and 9548. Plaintiffs appeal from these determinations and a denial of their motion for a new trial.

The following issues are raised on appeal:

(1) Can a party recover in quantum meruit for items outside their express agreement?

(2) Can quantum meruit be allowed where no benefit resulted?

(3) Can attorney's fees under a written agreement...