Electric Lighting Co. v. Elder

• Decision Date: 13 April 1897
• Citation: 115 Ala. 138,21 So. 983
• Parties: ELECTRIC LIGHTING CO. OF MOBILE v. ELDER ET AL.
• Court: Alabama Supreme Court

21 So. 983

115 Ala. 138

ELECTRIC LIGHTING CO. OF MOBILE v. ELDER ET AL.

Supreme Court of Alabama

April 13, 1897

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by Elder Bros. against the Electric Lighting Company of Mobile. There was judgment on a verdict for plaintiffs, and defendant appeals. Reversed.

In the first count of the complaint the plaintiffs claimed of the defendant the sum of $2,500 damages, for the breach of the following contract: "Know all men by these presents that Messrs. Elder Brothers, of New Orleans, La., hereafter mentioned as 'party of the first part,' and the Electric Lighting Company of Mobile, a corporation doing business in this city, and hereafter known as 'party of the second party,' have made and entered into the following agreement, to wit: "First. The party of the first part will sink, entirely of its own expense and risk at the power house of the party of the second part, an artesian well of six inches diameter, which will have a continuous flow at surface of not less than two hundred and fifty gallons of water per minute, and to have a pumping capacity of not less than seven hundred gallons of water per minute. Second. All the materials used in the construction of said well and the workmanship thereof is to be first class and all material and labor is to be at the expense of the party of the first part. Third. The water flowing from said well is to be deep-strata water, and no strainer will be placed to obtain flow from intermediate or intervening strata, as water from that source is likely to be of such quality as is not adapted to the use of the party of the second part. Fourth. The party of the second part, in consideration of the above premises, thirty days after satisfactory completion of the well aforesaid mentioned, and the compliance with the conditions promised by the party of the first part, will pay to the said party of the first part the sum of eighteen hundred and seventy-five dollars, in the following manner: ($500) five hundred dollars cash; ($1,375) thirteen hundred and seventy-five dollars in two notes, each for half of said amount, payable, one three months, and the other six months, from the said thirty days after the satisfactory termination and acceptance of the work, both notes bearing interest at six per cent. per annum. Fifth. The party of the second part will furnish, free, the steam and water required in the work by the party of the first part who will place at its expense whatever pipes may be necessary for said supply. Sixth. It is the spirit of this agreement that the party of the first part undertakes the work herein proposed at its own risk and responsibility, and that failing in the supply of water to the quantity herein stipulated, and on the conditions above mentioned, it is to receive no pay from party of the second part." The complaint then continues as follows: "and plaintiffs say that, although they have complied with all the provisions of said agreement on their part to be performed, the defendant has failed to comply with the following provisions thereof, to wit: 'The party of the second part, in consideration of the above premises, thirty days after satisfactory completion of the well aforesaid mentioned, and compliance with the conditions promised by the party of the first part, will pay to the party of the first part the sum of eighteen hundred and seventy-five dollars in the following manner: ($500) five hundred dollars cash; ($1,375) thirteen hundred and seventy-five dollars in two notes, each for half of said amount, payable, one three months, and the other six months, from the said thirty days after the satisfactory termination and acceptance of the work, both notes bearing interest at six per cent. per annum.' And plaintiffs aver that said work was completed, on, to wit, the 16th day of January, 1894, according to all the provisions contained in said agreement to be performed by plaintiffs, and thirty days thereafter plaintiffs demanded of said defendant the payment of said sum of five hundred dollars in cash, and said notes as provided by said agreement; but said defendant refused and still refuses to comply with its said agreement, and pay plaintiffs said sum of five hundred dollars, and give to plaintiff said two notes, as by said agreement it agreed to do, wherefore plaintiffs sue." The other counts of the complaint were the general counts for work and labor done, etc.

The defendant filed in all 17 pleas. The first, third, fourth fifth, sixteenth, and seventeenth set up substantially the same defense, which was that the water furnished by the artesian well which was bored by the plaintiffs was not suitable for the use for which the defendant intended it. The second, twelfth, thirteenth, fourteenth, and fifteenth set up the defense that "there has never been any satisfactory termination and acceptance of said work, and that said well was not satisfactory to said defendant, and has never been accepted by the defendant, of which the plaintiffs had notice." To the first of these sets of pleas the plaintiffs demurred upon the ground that the contract set forth in the first count of the complaint does not contain any undertaking or agreement on the part of the plaintiffs to guaranty the quality of the water supplied by the artesian well, or that it should have been suitable for use in the boilers of the defendant, and that said pleas are no answer to the complaint. To the second set of pleas the plaintiffs demurred upon the ground that said pleas fail to allege what the defect in the work was, or in what respect or particular the work was not satisfactory to the defendant. The demurrers to each of these pleas were sustained, and to this ruling the defendant duly excepted. Issue was joined upon the pleas of the general issue and the eleventh special plea, which was as follows: "And for further plea in this behalf, in answer to each of the common counts, leave of the court being first had and obtained, defendant says that it erected an electric plant in the city of Mobile for the purpose of furnishing the public and private electric lighting, and also for use in generating steam for said electric lighting and power purposes; and it was necessary for defendant to have a large quantity of water for use in said boilers for generating steam, and said plaintiffs, who are engaged in the occupation of sinking artesian wells, undertook and agreed, by means of an artesian well placed on the premises where said plant is located, to furnish water adapted for use in said boilers in generating steam, for which defendant agreed to pay them, in thirty days after the satisfactory termination and acceptance of said work, the sum of eighteen hundred and seventy-five dollars, five hundred dollars cash, and thirteen hundred and seventy-five dollars in two notes, each for half of said sum, payable in three and six months, respectively, the same being the foundation of said suit; and the defendant avers that the water furnished by plaintiffs from said well was not adapted for use in said boilers, in this: that it eats and corrodes and destroys the iron of which said boilers are constructed, and is mixed with a quantity of sand, and is a combination of sand and water, and is possessed of mineral properties, and quickly forms hard incrustations on the sides and bottom of the boilers, which weakens them, and renders them liable to explosion, and dangerous, and is not adapted for use in defendant's boilers, and therefore, by the terms of said undertaking and agreement, plaintiffs were to receive no pay therefor." Elder Bros., the plaintiffs, were artesian well contractors, and had been engaged in such business for about six years. Plaintiffs bored an artesian well for the defendant under the contract, a copy of which is set out in the complaint, and which contract was offered in evidence. Plaintiffs' testimony showed that the diameter of the well so bored for the defendant was six inches; the well was bored at the power house of the defendant; that the materials and workmanship were first class in every respect; that the well had a capacity of 315 gallons, about 4 feet above the surface, and that the pumping capacity was estimated to be 719 gallons per minute; that the water came from what is known as "deep-strata water," and there was no strainer put in to intercept any intervening water between the bottom and the top of the well. The well was finished a little before the 15th of January, 1894. The testimony of the plaintiffs tended to show that there was no sand in the water. The family of one of the witnesses drank the water for some time, and found no sand in it. The testimony for the defendant tended to show that there was sand in the water: that, when the well was opened to its full capacity, it would throw out a cart load of sand within an hour; that on the morning of the trial a sack was held over one of the outlet pipes, and within three minutes three quarts of sand were caught in the sack. The negotiations for boring the well were made between plaintiffs and Mr. S. S. Rubira, vice president and general manager of the defendant company. Upon the examination of said S. S. Rubira, he was asked the following question: "Has the Electric Lighting Company of Mobile ever been satisfied with, or has the artesian well ever been completed to the satisfaction of the Electric Lighting Company of Mobile?" Plaintiffs objected to this question, on the ground that it called for incompetent, irrelevant, and immaterial evidence. The court sustained the objection, and to this ruling the defendant duly excepted. There was evidence offered by the defendant to the effect that the result of the use in the defendant's boilers of the water from the artesian well...