Davis v. Merrick

• Decision Date: 26 October 1959
• Docket Number: No. 6591,6591
• Parties: S. J. DAVIS and Jimmie Pearson, d/b/a Davis Pump Company, Plaintiffs-Appellants and Cross-Appellees, v. Clifford MERRICK, Defendant-Appellee and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 1042

345 P.2d 1042

66 N.M. 226

S. J. DAVIS and Jimmie Pearson, d/b/a Davis Pump Company Plaintiffs-Appellants and Cross-Appellees, v. Clifford MERRICK, Defendant-Appellee and Cross-Appellant.

No. 6591.

Supreme Court of New Mexico.

Oct. 26, 1959.

Rehearing Denied Nov. 27, 1959.

Mears & Mears, J. Fred Boone, Portales, for appellants and cross-appellees.

Jay Morgan, Portales, for appellee and cross-appellant.

CARMODY, Justice.

Plaintiffs brought suit on an account arising out of an oral contract for drilling, equipping and reworking certain water wells. The judgment of the trial court awarded the plaintiffs a less amount than sued for, and both parties appeal.

The questions involved relate to (1) whether a well driller can recover for work done without producing water absent an agreement to so produce; (2) whether action by owner preventing completion of work of setting a pump because of dissatisfaction warrants relief from payment for work already done; and (3) the power of the court to alter or amend a contract.

The facts are that defendant, having difficulty with his irrigation well, employed plaintiffs to drill a new one. No guaranty was made as to a producing well. Plaintiffs drilled at one location which proved to be a dry hole, but there is no conflict as to the charge for this service. Plaintiffs then drilled a second well and apparently struck water. It is with respect to this well that most of the controversy developed, because, in the attempt to bring it into production, the casing was removed from the original well and placed in the new one. However, plaintiffs failed to make the well a producer, so the defendant directed them to return to the old original well and to clean and re-case the same. During this work, defendant became very dissatisfied with the plaintiffs' efforts and ordered them from the premises, but not until considerable expense had been incurred. Defendant then employed another well driller, who deepened the old well, properly set the pump, and brought the same into a fair amount of production.

The proof showed that there was a balance owing plaintiffs amounting to $1,643.08, but the trial court, sitting without a jury, reduced the amount to $890.21 because it disallowed certain charges which are enumerated in its findings. Plaintiffs appeal from this action, claiming that they are entitled to the entire amount. The defendant filed a cross-appeal, but has waived the same by failing to make any point thereon in his brief.

The findings of the trial court which are material to our decision are:

'7. That the second well drilled by the plaintiffs for the defendant was not a dry hole, but the plaintiffs failed to bring it into production.'

'8. That the plaintiffs then agreed to clean out the original well and re-set the casing, pump and motor.'

'9. That the work of the plaintiffs in cleaning out, and re-setting in the old well was unsuccessful.'

'11. That the drilling done by the plaintiffs was done in a workmen-like manner and the charge therefor was reasonable.'

'13. That the work done by the plaintiffs in setting the casing and pump was not done in a workmen-like manner and their charges for pulling casing, $200.00, pull and re-set pump $75.00, and the bill for work done on the original or old well $477.87 were for work that would not have been necessary had the work on the second well been properly performed.'

'14. That the defendant has failed to establish his cross-complaint.'

In a contract for drilling a water well, there is no implied undertaking that water will be obtained or that the well will be a success as to the quantity or quality of the water obtained, but only that the work shall be done in a workmanlike manner with the ordinary skill of those who undertake such work. Butler v. Davis, 1903, 119 Wis. 166, 96 N.W. 561; Littrell v. Wilcox, 1891, 11 Mont. 77, 27 P. 394; Harrelson v. Fitzgerald, 1925, 3 La.App. 510; Omaha Consol. Vinegar Co. v. Burns, 1896, 49 Neb. 229, 68 N.W. 492; Sweezy v. O'Rourke, 1919, 226 N.Y. 378, 123 N.E. 752.

The above principle was recognized by the trial court in allowing for the recovery of the amount which it did for the actual drilling. However, plaintiffs' basic attack is on the trial court's finding No. 13 above set out, which actually relates to two separate projects, the first one having to do with the second well drilled and the court's finding that the setting of the casing and the pump was not done in a workmanlike manner and therefore deducting the sum of $275. This particular well appeared to be of a surging type, that is, alternately, at intervals of about thirty seconds, it would pump water and thereafter air. There is a...