Johnston v. Johnston

• Decision Date: 13 June 1889
• Citation: 42 N.W. 754,26 Neb. 745
• Parties: JOHNSTON v. JOHNSTON.
• Court: Nebraska Supreme Court

26 Neb. 745

42 N.W. 754

JOHNSTON

v.JOHNSTON.

Supreme Court of Nebraska.

June 13, 1889.

Syllabus by the Court.

1. In an action by a plaintiff to recover the price of the sinking of a well, it was alleged in the petition that defendant agreed to pay the plaintiff for the work 50 cents per foot for the first 100 feet, 60 cents for the next 50 feet, and 75 cents per foot for all over 150 feet. The answer consisted-- First, of a general denial; second, of an allegation, in substance, that the plaintiff had undertaken to sink and curb a well for the defendant for the price per foot named in the petition, but that the plaintiff had agreed and warranted that the well should yield a specified quantity of water per day, and, in case of failure so to do, nothing should be paid the plaintiff for sinking the well, and that the well did not supply the quantity of water named. This was denied by the reply. It was held that an instruction to the jury that the burden of proof to sustain the warranty was on the defendant in the action, was not erroneous.

2. In such case an instruction that if there was a warranty and breach thereof, but that if the plaintiff did not expressly agree that in case the well did not yield the quantity of water named in the answer he would charge nothing therefor, and if the jury found the well was of any value the plaintiff's recovery should be the contract price, less the amount it would cost to complete the well, was not erroneous, as inapplicable to the evidence.

Error to district court, Nance county; POST, Judge.George D. Meiklejohn and Sullivan & Reeder, for plaintiff in error.

W. F. Critchfield and J. W. McClelland, for defendant in error.

REESE, C. J.

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 $84, which he alleged was due him from plaintiff in error for services rendered in sinking a well. It was 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 50 cents per foot for the first 100 feet, 60 cents per foot for all over 100 feet and under 150 feet, and 75 per foot for all over 150 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 154 feet, and also paid one E. Harman for his assistance in sinking the same the sum of $15; that the whole amounted to $98, upon which $14 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 cubing 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...