Hall v. Cook

• Decision Date: 03 March 1909
• Citation: 117 S.W. 449
• Parties: HALL v. COOK et al.
• Court: Texas Court of Appeals

117 S.W. 449

HALL v. COOK et al.

Court of Civil Appeals of Texas.

March 3, 1909.

Rehearing Denied March 24, 1909.

Appeal from Atascosa County Court; W. M. Abernethy, Judge.

Action by Walter Cook and others against W. S. Hall. Judgment for plaintiffs, and defendant appeals. Affirmed.

Geo. M. Martin and W. W. Walling, for appellant. J. W. Preston and James Raley, for appellees.

JAMES, C. J.

The amended petition of Walter Cook alleged a contract to bore a well for appellant Hall 500 feet deep for $400, and to bore from 500 feet on to and not exceeding 800 feet for $2 per foot, and that, after reaching a depth of 800 feet, defendant made a new contract with plaintiff to continue boring, which plaintiff did for a distance of 90 feet, at a price of $2.25 per foot. The pleading alleged that the original contract was verbally made with plaintiff and M. Bowyer, of the firm of Cook & Bowyer, on or about February 5, 1906, that they were to bore 500 feet, and, if a sufficient flow of water was not obtained at that depth, they were to continue to bore to 800 feet, unless caused to stop by defendant before reaching said depth; that Cook & Bowyer commenced the work on or about February 18, 1906, and bored to 800 feet in compliance with the agreement, whereby defendant owed them $1,000, and paid them $800, leaving a balance of $200 then due them; that about that time the firm of Cook & Bowyer dissolved, and the latter assigned to plaintiff the outfit and all claims due the firm, including said balance of $200; that afterwards plaintiff and defendant entered into a further contract to continue boring the well, plaintiff agreeing to go as deep as he could, and defendant agreeing to pay at the rate of $2.25 per foot; that accordingly plaintiff went on boring, and bored 90 feet further, when an unavoidable accident occurred, the breaking of a drill rod, an accident liable to occur, and which does occur, with the most careful and experienced well borers, and one that cannot be anticipated and prevented, and when such accident occurs the work must stop unless the drill rod be removed; and that plaintiff spent 14 days, with experienced hands and approved machinery and appliances, endeavoring to remove the same, but wholly failed, without fault on his part, and then ceased work on or about January 15, 1907. The prayer was for the aforesaid balance of $200 and for $202.50 for said 90 feet. Plaintiff recovered the full amount.

The first assignment of error states that a new trial should have been granted because the evidence discloses that the well was to be cased to the bottom, and this was not done. Questions of evidence are for the jury, and we find evidence in the record that the well was cased as far as this was possible on account of the broken rod. The statement of Byron Mills is: "There was upon the ground about 50 feet of 2-inch casing, and only about 20 feet of this was placed in the well for the reason that the same could not be driven any deeper into the well because there was some obstruction in the well." This tends to show that the well was cased as far as the obstruction, and as far at it was possible to do so.

The second assignment is that a new trial should have been granted because plaintiffs agreed to case the well 800 feet deep with 3-inch casing, and failed to do so. The evidence shows that they had cased it with 3-inch casing for a depth of only 633 feet. By the contract de...