Lemke v. Hage
| Decision Date | 15 March 1910 |
| Parties | LEMKE v. HAGE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.
Action by Albert F. Lemke against Henry Hage. Judgment for plaintiff, and defendant appeals. Affirmed.
This is an action to recover the sum of $580.50, alleged to be due for materials and labor furnished in digging, drilling, piping, and constructing a well. It is alleged that the agreement for the construction of the well was made in February, 1902; and that thereby the defendant was to pay $1.25 per foot for the drilling, where the plaintiff furnished the piping; 75 cents per foot if defendant furnished it; and also $1 per foot for drilling in rock. Drilling was commenced on March 5, 1902, at a spot designated by the defendant, and was continued for three or four weeks. At a depth of 120 feet some rock was struck through which the drilling could not be continued and the hole was abandoned. Plaintiff testified that the defendant informed him that he expected a supply of water at a depth of from 75 to 100 feet. A new hole was drilled and continued to the depth of 480 feet. Plaintiff claims that he was unable to drill deeper with his apparatus and that the defendant authorized him to secure a well driller who could continue the well, but that he refused to allow the work to proceed when he learned that the cost for continuing the work would be greater than the price agreed upon with the plaintiff. The amount claimed is for drilling at the agreed charge for drilling, for piping, for a steel shoe, and for pulling out the pipe from the first hole. No new agreement was made for the drilling of the second hole. Water had been obtained at various depths and when the drilling was stopped, but not in sufficient quantities to supply the needs of the defendant. The defendant in his answer to the complaint claims that the plaintiff failed to furnish him with a reasonably sufficient supply of water, and that he is therefore not entitled to any compensation. He alleges that it is a custom in Brown county, where the well was drilled, that a well digger, who undertakes to construct a well upon the terms on which the plaintiff agreed to dig his well, receives no pay for his work unless a reasonably sufficient supply of water be obtained. The defendant also presents a counterclaim in the sum of $200 for board furnished the plaintiff's employés while they were working at the drilling, for feed furnished for plaintiff's horse, for fuel furnished and water hauled for plaintiff's steam engine, which was used in drilling the well, and for the services of his son in assisting the plaintiff. These, except the services of his son, the defendant had agreed to furnish while the well was being dug. The jury found that the plaintiff did not agree to furnish the defendant with a reasonably sufficient supply of water; that there was not such a supply in the well when the plaintiff ceased drilling; that there was a custom in Brown county, at the time of the contract, that a well digger should receive no pay for his work unless a reasonably sufficient supply of water was obtained; and that $160 was the value of the board furnished by the defendant to plaintiff, the wood for the engine and defendant's services in furnishing water for the engine. Of the various motions made, the court granted the one changing the answer to the question, whereby the jury found to the effect that there was a particular custom in Brown county not to pay a well digger for his work unless he furnished a reasonably sufficient supply of water. This action of the court was based on the ground that the evidence introduced by the defendant to establish such a custom tended only to establish particular instances, and wholly failed to show such a custom. Judgment was ordered in plaintiff's favor. Upon defendant's motion for a new trial, several affidavits were presented to the court upon the question of the particular custom regarding paying for well diggers' work in the event...
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...on Contracts, section 1682; 2 Elliott on Contracts, section 1680; Farnsworth v. Hemmer, 83 Mass. 494, 49 A. D. 756; Lemke v. Hage, 142 Wis. 178, 125 N.W. 440, 135 A. S. 1066, 1068. "Although general usage may be shown to remove ambiguities and uncertainties, it cannot be shown and employed ......
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...of it, and to have contracted with the understanding that it should apply to and affect their contract. Lemke v. Hage, 142 Wis. 178, 125 N. W. 440, 135 Am. St. Rep. 1066. In the former case it is not necessary that either party should know what the custom was as to how an alleged negligent ......
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