Madden v. Oestrich

• Decision Date: 10 July 1891
• Citation: Madden v. Oestrich, 46 Minn. 538, 49 N. W. 301 (Minn. 1891)
• Parties: Jerome E. Madden v. William Oestrich
• Court: Minnesota Supreme Court

49 N.W. 301

46 Minn. 538

Jerome E. Madden v. William Oestrich

Supreme Court of Minnesota

July 10, 1891

Appeal by defendant from an order of the district court for Waseca county, Buckham, J., presiding, refusing a new trial after verdict of $ 150.25 for plaintiff.

Order affirmed.

Sawyer Abbott & Sawyer, for appellant.

E. B Collester and P. McGovern, for respondent.

OPINION

Collins, J.

Action by an assignee under the insolvency laws of the state, to recover for work done and materials furnished by his assignors in drilling and sinking a well upon defendant's farm. The complaint set forth an agreed price, and also the reasonable va ue of the services and materials; but the trial proceeded upon the theory that there was a contract between the parties, which had been substantially performed at a time when the defendant forbade the assignors, and, later on their assignee, to proceed and fully complete the undertaking. The court below, when charging the jury characterized the understanding or agreement entered into by the parties in reference to the sinking of a well as a "loose bargain;" and we may add that the case itself seems to have been rather loosely tried by their counsel. It is claimed by the defendant (appellant) that there was an entire absence of evidence on which the verdict in plaintiff's favor can be sustained; and his claim is undoubtedly correct, unless there was testimony adduced upon the trial which would justify the jury in finding that the contract with respect to the drilling and sinking of the well had been substantially complied with, when the plaintiff's assignors were prohibited doing anything further. The plaintiff's testimony was mostly directed towards establishing this substantial compliance, while the defendant, in addition to controverting on this issue, spent much of his time in endeavoring to show that the contractors found an abundance of water at 135 feet from the surface, and should have then finished the job by putting in a pump, instead of proceeding on -- fraudulently, as he insists -- to the depth of 262 feet. The court was not requested to pass upon the sufficiency of plaintiff's proofs at any time prior to the hearing of the motion for a new trial. No exceptions were taken while the testimony was being received, nor to any portion of the charge, which was in line with the theory, before mentioned, on which the trial was conducted from beginning to...