Irby v. Phillips

• Decision Date: 07 December 1905
• Citation: 40 Wash. 618,82 P. 931
• Parties: IRBY et al. v. PHILLIPS.
• Court: Washington Supreme Court

82 P. 931

40 Wash. 618

IRBY et al. v. PHILLIPS.

Supreme Court of Washington

December 7, 1905

Appeal from Superior Court, Franklin County; Frank H. Rudkin, Judge.

Action by J. F. Irby and another against W. H. Phillips. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

O. R Holcomb, for appellant.

Zent &amp Lovell, for respondents.

HADLEY J.

This action was brought to recover the alleged contract price for drilling a water well. The complaint alleges that the contract was a verbal one, by which it was agreed that plaintiffs should drill a well upon the defendant's farm and that the defendant should pay therefor the sum of $2 per foot for the first 200 feet of depth, and $2.25 for each foot in excess of 200 feet; that the plaintiffs for said price guarantied that they would drill a depth of 300 feet, but that the guaranty extended no farther; that, in addition to the amounts to be paid for the drilling as aforesaid, the defendant was to move the drilling outfit to the place of drilling and furnish the necessary fuel and water to operate the drilling machinery, all at his own expense; that pursuant to said agreement the plaintiffs drilled a well to the depth of 706 feet, when the defendant ordered them to cease drilling; that the plaintiffs were ready and willing to continue the drilling to a greater depth, but that the defendant refused to permit them to do so. Judgment is demanded for $1,538.50. The answer alleges that the agreed price was 50 cents per foot in earth, and $2 per foot in rock, for the first 200 feet, and $2.25 per foot for all in excess of 200 feet; that if plaintiffs failed to obtain water sufficient for defendant's purposes the amount to be paid was one-half of the above rates per foot for the total depth drilled, provided they should drill as long as required or desired by defendant, and that plaintiffs were to drill until they obtained a sufficient quantity of water, or until required by defendant to cease. It is alleged that plaintiffs ceased drilling without any directions from defendant that they should do so, and without his consent, and contrary to his desires. We believe the foregoing sufficiently states the material points in the pleadings. What is alleged concerning the agreement to deduct the amount for any well abandoned before reaching a depth of 300 feet is not pertinent now, inasmuch as the well over which the controversy arises was not so abandoned. The cause was tried before a jury, and a verdict was returned in favor of plaintiffs in the sum of $806.05. Judgment was entered for the amount of the verdict, and the defendant has appealed.

Appellant assigns a number of errors, but, as stated in his brief, the seventh assignment practically includes all the others. That assignment is to the effect that the verdict is contrary to the law and the evidence, and that the motion for a new trial should have been granted. The testimony for respondents concerning the contract was to the effect that, if they were unable for any reason to reach a depth of 300 feet and had not obtained water, they were to receive no pay; but that, if they drilled a greater depth than 300 feet, they were to receive...