Hein v. Fox, 9109
| Decision Date | 23 March 1953 |
| Docket Number | No. 9109,9109 |
| Parties | HEIN v. FOX et al. |
| Court | Montana Supreme Court |
Raymond F. Gray, Ronan, argued the case orally for appellant.
Lloyd I. Wallace, F. N. Hamman, J. A. Turnage, Polson, for respondents. Lloyd I. Wallace argued the case orally.
Clarence J. Hein sued John R. Fox for Fox' failure to finish drilling a well for water as agreed under the terms of a written contract. Trial by jury resulted in a verdict for Hein for $1,000. A new trial was ordered in the district court and from such order Hein appeals.
The complaint alleges and the answer admits: That 'on or about the 6th day of February, 1950, the plaintiff and defendant entered into an agreement,' which was in writing and signed by plaintiff and defendant,
Defendant's answer admits that Hein paid Fox 'the sum of Sixteen Hundred Fifty and no/100 Dollars ($1650.00) to apply on said contract and the drilling of said well.' Fox' answer shows that he drilled one well to a depth of 250 feet, 'but it became necessary to abandon said hole and seal the same off, by reason of the fact that the casing became broke.' A second well was then commenced. Hein said Fox 'just moved the rig ahead three or four feet and started another one.' The second well was down 350 feet when the casing, according to the answer, 'hit and struck a boulder' which ended all further drilling on Fox' part.
According to the provisions of the written agreement and contract, Fox, the contractor, had to 'perform all the work required for the drilling, developing and testing of a six inch diameter well.' The work had to be 'prosecuted diligently * * * until final completion in full conformity with the provisions hereof,' such provisions requiring
From the evidence it is plain that Fox never completed a well as agreed upon in the written contract.
Under the evidence the jury could have found that he was prevented from completing the well by hard luck while drilling and inability to secure needed six-inch casing and that he intended sometime in the future to complete the well. On the other hand, the jury could find and apparently did find that Fox had abandoned the drilling of and never intended to complete such well. The verdict for Hein bears out this conclusion.
The lower court gave as its reason for granting a new trial that:
The words, 'want of approval by the named agency,' have reference to that part of the contract providing that it 'shall not be valid or binding on the parties hereto unless approved by the duly authorized representative of the State Director of the Farmers Home Administration, United States Department of Agriculture, unless otherwise determined by the State Director the person who will countersign checks of the owner payable under this agreement will be such authorized representative.' The two checks, covering the $1,650.00 paid by Hein to Fox were both countersigned by 'R. M. Sherick.'
The record shows that defendant by demurrer filed November 21, 1950, challenged the complaint upon the ground 'that said complaint and the whole thereof does not state facts sufficient to constitute a cause of action.' This demurrer was overruled by the court on December 5, 1950.
Defendant again challenged the complaint by motion for non-suit, when plaintiff rested, one of the grounds of such motion being 'that the complaint and the whole of it fails to state facts sufficient to constitute a cause of action against the defendant * * *' The motion for a non-suit was denied by the court.
These rulings upon demurrer and motion for non-suit indicate that the trial court upon these occasions believed the complaint did state facts sufficient to constitute a cause of action, although the complaint did not allege that the written contract between Hein and Fox had been approved by the named agency, the Farmers Home Administration, as provided for in the contract pleaded. By alleging that Hein had paid Fox $1,650 for drilling and that 'defendant began drilling a well six (6) inches in diameter and worked part time on said well until the month of June 1950,' the complaint, upon its face, showed that the parties had waived the provision of the contract requiring approval thereof by the named agency. Evidence of plaintiff in his case in chief showing that Hein had paid Fox $1,650 for drilling and that Fox had drilled the two dry holes and supporting the allegations of the complaint constituted a waiver of such approval by the named agency.
This court finds no good reason justifying the action of the trial court in changing its ruling on the sufficiency of the complaint between the time the demurrer and motion for non-suit were ruled upon and the ruling thereon made upon motion for a new trial.
We look with disfavor upon the practice followed by the trial court here and recommend that if a trial court believes a complaint is subject to demurrer, proper ruling thereon should be made at the earliest possible stage of proceedings, so that the pleading may be amended, where feasible, thereby avoiding wasted time, effort and expense.
The approval by the agency was a condition precedent to the actual carrying out of the contract and ceased to be such by reason of the waiver.
A waiver may be by mere voluntary expression of waiver and nearly always by continuing to render performance or by receiving further performance from the other party, with knowledge that the condition has not been performed. 3 Corbin on Contracts, Sec. 755, p. 918.
Then, too, where a party enters into a contract knowing that permission of government...
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