Johnson v. Bowman
| Decision Date | 13 June 1889 |
| Citation | 42 N.W. 754,26 Neb. 745 |
| Parties | WITHERINGTON JOHNSON, PLAINTIFF IN ERROR, v. SAMUEL T. BOWMAN, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Nance county. Tried below before POST, J.
Affirmed.
Geo. D Meiklejohn, and Sullivan & Reeder, for plaintiff in error cited: Greenleaf on Evidence, sec. 51; Stephen on Pleading secs. 84, 85.
W. F. Critchfield, and J. W. McClelland, for defendant in error, cited: Schreckengast v. Ealy, 16 Neb. 514.
This action originated in one of the inferior courts of Nance county, where such proceedings were had as resulted in an appeal to the district court. In that court defendant in error filed his petition in which he sought to recover the sum of eighty-four dollars, which he alleged was due him from plaintiff in error for services rendered for sinking a well. It is as alleged that plaintiff and defendant entered into an oral agreement by the terms of which defendant in error agreed to sink a well for plaintiff in error, for which plaintiff in error was to pay fifty cents per foot for the first one hundred feet, sixty cents a foot for all over one hundred feet and under one hundred and fifty feet, and seventy-five cents per foot for all over one hundred and fifty feet in depth of said well; that plaintiff in error agreed to furnish one full hand to assist defendant in error in sinking said well, or to repay defendant in error all moneys paid by him for such assistance; that in pursuance of said agreement, defendant in error sunk a well for plaintiff in error on plaintiff's farm in Nance county, to the depth of one hundred and fifty-four feet, and also paid one E. Harman for his assistance in sinking the same, the sum of fifteen dollars; and that the whole amounted to ninety-eight dollars, upon which fourteen dollars had been paid.
The answer of plaintiff in error consisted, first, of a general denial of the allegations of the petition. Second, it was alleged that "Plaintiff promised and agreed with defendant that he would bore, sink, and curb, the well for defendant on his stock farm, for the consideration of the sum of fifty cents per foot for the first one hundred feet, sixty cents per foot for the next fifty feet, and seventy-five cents per foot for each foot over and above one hundred and fifty feet; and plaintiff should put in one-and-a-half-inch tubing for the first thirty feet curbing at the bottom of the well, the balance of said curbing to be constructed of one-inch tubing; that said well was to be completed during the fall of 1885; that plaintiff then and there covenanted and agreed with defendant to warrant and guaranty said well to supply defendant with twenty barrels of water every twenty-four hours, and if plaintiff failed to furnish defendant such supply of water, plaintiff would have no pay for said well; that upon plaintiff's failure to sink the well in the year 1885, as per his contract, it was mutually agreed that the well should be sunk in the spring of the year 1886; that the well was sunk to the depth named in the petition, but that it failed to furnish the quantity of water agreed to, and that plaintiff had still failed to furnish defendant with a well according to the terms of said contract, or a well which had supplied twenty barrels of water every twenty-four hours, which by said contract plaintiff had agreed and warranted, and that therefore there was a failure on the part of plaintiff to comply with the contract set out in the answer; that upon the failure of the well to furnish the quantity of water required, plaintiff agreed to return in the fall of the year 1886, and sink the well fifteen or twenty feet deeper, in order to make it comply with the terms of the contract, but that he had failed so to do; that owing to the failure of plaintiff to sink the well in compliance with his contract to furnish the amount of water agreed upon, he had no cause of action nor claim against the defendant.
The reply consisted of a general denial, with an admission of the allegations of the answer as to the price to be paid for sinking the well. A jury trial was had which resulted in a verdict and judgment in favor of defendant in error, who was plaintiff below, for the sum of sixty-five dollars. A motion for a new trial was filed, based upon the following grounds:
To continue reading
Request your trial