Harrelson v. Fitzgeralds

• Decision Date: 10 November 1925
• Docket Number: 8080
• Citation: 3 La.App. 510
• Court: Court of Appeal of Louisiana — District of US
• Parties: MRS. HENRIETTA HARRELSON, Natural Tutrix, v. MRS. MAMIE D. FITZGERALD AND HUSBAND

3 La.App. 510

MRS. HENRIETTA HARRELSON, Natural Tutrix, v. MRS. MAMIE D. FITZGERALD AND HUSBAND

No. 8080

Court of Appeals of Louisiana, First Circuit

November 10, 1925

Rehearing Refused December 22, 1925.

Appeal from the Twenty-second Judicial District Court, Parish of East Baton Rouge, Hon.--, Judge.

This is a suit to collect the contract price, of a verbal contract of a flowing well. There was judgment for plaintiff and defendant appealed. Judgment affirmed.

Judgment affirmed.

Cross and Moyse of Baton Rouge, attorneys for plaintiff, appellee.

Shelby Taylor of Baton Rouge, attorney for defendant, appellant.

OPINION

ELLIOTT, J.

John W. Fitzgerald, acting as agent for the defendant, his wife, employed plaintiff's minor son, Additon Humphrey Harrelson, by verbal contract, to put down on his wife's place a "flowing well."

The plaintiff's son was to furnish the boring outfit and his own labor and have charge of the work, while defendant was to furnish the pipe and two men to help in the work, and pay plaintiff's son 30 cents per foot depth of the well.

Plaintiff's son guaranteed to bring in for defendant a "flowing well," but no amount was stipulated that it should flow, nor was anything said about the time it should continue to do so. After considerable work her son obtained a flow of about a gallon in a minute and a half, at a depth of 382 feet. This well was left to flow at this rate for about a week, after which he returned, and, thinking to get a larger flow, pulled up the pipe, cleaned the strainer and replaced it at the same depth; but instead of improving matters, the flow was reduced to about one gallon in 7 minutes and further efforts to improve the flow were unsuccessful. The flow, after a few weeks, commenced to decrease, and at the time of the trial, about six months after the well had been put down, it continued to run only a dripping or trickling stream at the ground, or just a little below it.

The plaintiff, claiming that her son had performed his part of the contract, requested payment, and, upon being refused, brought suit; and also to recover the value of 41 feet of pipe used in the well.

Defendant resists, claiming that the well is not a "flowing well," such as the contract contemplated.

A considerable amount of testimony was taken. Neighbors and witnesses living in the vicinity, comparing the well with others in the neighborhood, differ in their opinion as to...