Meader v. Allen

• Decision Date: 07 February 1900
• Citation: 81 N.W. 799,110 Iowa 588
• Parties: GEORGE W. MEADER, v. H. B. ALLEN, Appellant
• Court: Iowa Supreme Court

81 N.W. 799

110 Iowa 588

GEORGE W. MEADER, v. H. B. ALLEN, Appellant

Supreme Court of Iowa, Des Moines

February 7, 1900

Appeal from Osceola District Court.--HON. F. R. GAYNOR, Judge.

ACTION in equity to recover on a contract the price for sinking a well, and to establish a mechanic's lien therefor. From a decree in plaintiff's favor, defendant appeals.--Modified.

AFFIRMED.

O. J Clark and Boies & Boies, for appellant.

C. M Brooks and Milt H. Allen, for appellee.

WATERMAN J. GRANGER, C. J., not sitting.

OPINION

WATERMAN, J.

There is a motion to strike from the record all of the evidence, on the ground that it has not been properly preserved. The stenographer who reported the case was not the official reporter, and was not sworn, but the judge appended a proper certificate to the transcript of the testimony after the shorthand notes had been transcribed. This was enough. The reporter was an officer de facto. It can hardly be the duty of parties litigant to investigate before a trial the right of the court officials to act in their several capacities. The motion will be overruled. Etter v. O'Neil, 83 Iowa 655 at 655-657, 49 N.W. 1013.

II. The contract under which the well was sunk is as follows:

"The undersigned hereby employs Geo. W. Meader, of Sibley, Iowa, to drill a well upon the following described premises, to-wit: * * * quarter, Sec. 11, township 99, 41, state of Iowa, and agree to pay therefor the price as follows: For the first one hundred feet, seventy-five cents per foot; for the second one hundred feet, one dollar per foot; and for the balance, twenty-five cents per foot additional for each additional one hundred feet. It is understood and agreed that, in addition to the foregoing prices, the undersigned agrees to pay for all casing necessary to be used in said well. It is further agreed that the said Geo. W. Meader guarantees to obtain a reasonable supply of water in the well, and the supply to be determined by a test of thirty days' use thereof and therefrom by the undersigned; and, at the expiration of said thirty days after the completion of the drilling thereof, a reasonable supply of water has been obtained, then the undersigned agree to make payment to the said Geo. W. Meader, at Sibley, Iowa, the sum of money which will then be due in accordance with the aforesaid prices. It is distinctly understood that the undersigned is to furnish the casing at his own proper expense, and should the above-mentioned supply of water not be obtained, and the well be abandoned by the said Geo. W. Meader for the reason of being unable to obtain water, then and in such case the said Geo. W. Meader forfeits the labor of the drilling, but not the price of the casing. It is also agreed that use of the well for more than thirty days without giving written notice to said Meader of lack of water shall be conclusive proof of a proper and reasonable supply. It is further agreed that the undersigned is to pay the said Meader the sum of--in addition to the above prices for the setting over and continuing an old well. This agreement not binding unless approved by said Geo. W. Meader in writing hereon. Well casing is to be thirty-four cents per foot. Dated this 4th day of July. 1895.

[Signed] H. B. Allen.

"Approved, Geo, W. Meader."

The first defense is that a part of the contract was oral. It is said it was verbally agreed that five-inch casing should be put in the well by plaintiff, and that he should furnish a pump and tubing; that he has not complied with this part of his contract, for some of the casing used is but two and one-half inches in diameter, and he has failed and refused to furnish a pump. The evidence offered to establish this oral agreement was to the effect that, immediately prior to the execution of the contract, plaintiff showed defendant some five-inch casing, and told him that was the kind he intended to use. We may say in this connection that both parties construe the contract to mean that plaintiff was to procure and put in the casing, and defendant was to pay therefor. The evidence was admissible. Its reception does not contravene the well-known rule that parol evidence may not be received to modify, alter, or contradict a previous or contemporaneous written agreement. The effect of this evidence was explanatory only. It tended to show what size the casing was to be for which defendant agreed to pay thirty-four cents per foot. Jackson v. Mott, 76 Iowa 263, 41 N.W. 12. The evidence offered to show that defendant agreed to furnish a pump and tubing was of a different character, and cannot be considered. It manifestly tends to increase plaintiff's obligation by adding to the liability imposed upon him by the terms of the writing.

III. It appears, under the terms of this contract, clearly, to have been defendant's duty to test the well by means of his own, in order to satisfy himself as to the water supply, and this he has never done. According to the tests made by the...