Nulton v. Croskey

• Decision Date: 27 February 1905
• Citation: 85 S.W. 644,111 Mo.App. 18
• Parties: CHAS. E. NULTON et al., Appellants, v. JOSIAH H. CROSKEY, Respondent
• Court: Kansas Court of Appeals

85 S.W. 644

111 Mo.App. 18

CHAS. E. NULTON et al., Appellants, v. JOSIAH H. CROSKEY, Respondent

Court of Appeals of Missouri, Kansas City

February 27, 1905

Appeal from Schuyler Circuit Court.--Hon. N. M. Shelton, Judge.

AFFIRMED.

Action affirmed.

C. C Fogle for appellant.

(1) There were no exceptions taken and saved at the time by defendant to plaintiffs' instructions. Exceptions must be taken to the giving of instructions at the time they are given. Blashfield on Instructions to Juries, p. 825, secs 368 and 369; State v. Meyers, 99 Mo. 107; State v. Rambo, 95 Mo. 462; State v. Woodward, 171 Mo. 593; Lefkow v. Allred, 54 Mo.App. 141; State v. Hayden, 61 Mo.App. 662; Gordon v. Gordon, 13 Mo. 215. (2) In the motion for a new trial filed by the defendant the objection is made by the respondent for the first time that the court erred in giving instructions to the jury for the plaintiffs numbered 1, 2, 3, and 4. These were all plaintiffs' instructions given by the court so if all of plaintiffs' instructions taken together present the law of the case then the objection is not good or if instruction numbered one is wrong and is corrected by any of the others or by all of them then the objection is not good or if any of plaintiffs' instructions are correct then the objection is not good and the court erred in granting defendant a new trial. Blashfield on Instructions to Juries p. 813; May v. Gamble, 14 Florida 467; Oltmanns v. Finley, 47 Neb. 289; Omaha v. McGavock, 47 Neb. 313; Blashfield on Instructions to Juries, p. 816, sec 367. (3) This being an appeal from an order granting the defendant a new trial nothing can be considered by this court except the ground of the order for a new trial and that was "on account of error in instruction numbered one." And as there were no exceptions taken and saved to instruction numbered one the court erred in granting the defendant a new trial. Bradley v. Reppell, 133 Mo. 559. (4) A new trial should not be granted except for error that is prejudicial to the substantial rights of the complaining parties upon the merits of the case. The verdict of the jury in this case was plainly for the right party. The instructions taken together and considered as a whole presented the law of the case. Ittner v. Hughes, 133 Mo. 679.

Higbee & Mills for respondent.

(1) Plaintiffs' instruction numbered one was erroneous, misleading and prejudicial. Wernli v. Collins, 87 Iowa 548, 54 S.W. 365. (2) Plaintiffs' contract, as pleaded and proven, was to drill and case a well that would furnish a sufficient supply of water for the stock on defendant's farm. The instruction, if they believe plaintiffs contracted simply to discover or find water and did so, was outside the issues. (3) The following modifying clause, "provided they otherwise complied with their contract" does not cure the error; it did not tell the jury what was a compliance with the contract.

OPINION

BROADDUS, P. J.

The plaintiff's suit is to recover for alleged performance of a verbal contract substantially of the following import. On the 27th day of July, 1901, he agreed to drill and case a deep well for the defendant that would when completed furnish sufficient water for all purposes on defendant's farm, the sufficiency of which was to be determined by the sand pumps used in the excavation of said well, for which defendant was to pay him $ 1.10 per foot. It was also provided that defendant was to board plaintiff's teams and furnish fuel and water for the operation. The plaintiff drilled a well on defendant's farm to a depth of 255 feet which, when tested in the manner provided by the contract, seemed to have supplied the necessary quantity of water. But at the time it was tested the lower end of the well had not been cased. After having so tested the well, plaintiff proceeded to finish the casing, but was unable, on account of obstructions of some kind not definitely shown, to case the lower ten feet thereof. Defendant introduced evidence tending to show that in the condition plaintiff left the well he tried to pump water but the well failed almost entirely to furnish water in any quantity. The plaintiff's evidence tended to show that the well in all probability had been partially filled with dirt or other debris after he had quit work on it, as it was found that the top section of the casing had been removed. The jury returned a verdict for the plaintiff. Defendant filed a motion for new trial which was sustained by the court, whereupon plaintiff appealed.

The court granted a new trial on the ground of error committed in giving instruction numbered one for plaintiff. Said instruction reads as follows:

No. 1. "Gentlemen. The plaintiffs base their claim to compensation for sinking the well in question on defendant's land upon a contract which they contend was to furnish water sufficient, when tested by the sand pumps on their machine, would supply the defendant's land with water sufficient to supply his farm, and claim further that they were to case the same and if they so furnished water when so tested they were to have $ 1.10 for each foot that they sunk the well, and that in pursuance with that arrangement they sunk the well 245 feet and discovered water sufficient when tested by their sand pump to supply the water as provided by said contract, now they claim they were not to be responsible for the future supply of water that might be provided by said...