Omaha Consol. Vinegar Co. v. Burns

• Decision Date: 19 February 1895
• Citation: 62 N.W. 301,44 Neb. 21
• Parties: OMAHA CONSOLIDATED VINEGAR CO. v. BURNS.
• Court: Nebraska Supreme Court

44 Neb. 21

62 N.W. 301

OMAHA CONSOLIDATED VINEGAR CO.

v.BURNS.

Supreme Court of Nebraska.

Feb. 19, 1895.

Syllabus by the Court.

1. One who predicates his right to relief upon the alleged performance by him of all the terms of a written contract must show a substantial compliance with each requirement thereof, where there has been neither a waiver nor acceptance of benefits thereunder by the other contracting party.

2. A party is not allowed to allege in his petition one cause of action and prove another upon the trial. The allegata and probata must agree. Imhoff v. House, 53 N. W. 1032, 36 Neb. 28, followed.

Appeal from district court, Douglas county; Hopewell, Judge.

Action by the Omaha Consolidated Vinegar Company against Joseph Burns. The defendant filed a cross petition, and plaintiff dismissed its action without prejudice. From a judgment for defendant on his cross petition, plaintiff appeals. Reversed.Mahoney, Minahan & Smyth, for appellant.

Chas. Offutt, for appellee.

RYAN, C.

It is necessary to refer to the petition originally filed in the district court of Douglas county merely to explain the existing attitude of the respective parties to the subject-matter in litigation. Originally there was filed in the office of the register of deeds of said county an affidavit of the defendant, Joseph Burns, for a mechanic's lien, on account of sinking a well on real property of the plaintiff in Omaha. The petition in the first instance filed herein was for the purpose of having the aforesaid claim of lien removed as a cloud on the title of plaintiff. The defendant, by his answer, in the nature of a cross petition, asked the foreclosure of the lien claimed, as though the cross petition had been the first pleading filed, and thereafter the action proceeded as though it was one brought for such a foreclosureby the defendant. From a decree in favor of the defendant granting for the most part the relief prayed, the plaintiff has appealed.

By his cross petition the defendant averred that plaintiff, through its president, its duly-authorized agent, entered into a contract in writing, of which the following is a copy: “September 11th, 1890. Joseph Burns: Please sink a tubular well, 7-inch lap-welded iron pipe, at our vinegar factory at Omaha, and continue sinking the same until you get a water supply of 2,000 gallons of water per hour, unless sooner stopped by us, you to furnish all pipe points, point, and working barrel and valves, together with plunger rods and all other material necessary to construct and complete the well in a first-class manner to the surface of the ground; and, on completion of the work, we agree to settle for the same at the rate of five dollars ($5) per foot, one-half to be paid in cash, and the balance to be paid by our note, of ninety days, without interest. We will furnish at our own expense the pump, or whatever we may decide to use to raise the water with. It is the understanding that you pay all bills for labor and material necessary to complete the work as above, for the above prices; and, should the well have to be sunk below 250 feet, then the price shall be six dollars per foot below the first 250 feet, or for the second 250 feet, or any part thereof that it may be necessary to sink the well to obtain the necessary amount of water; and it is further understood that in no case shall the well be sunk deeper than 500 feet deep at this price from the surface of the ground. It is the understanding that, when the well is complete as above, it shall be paid for as first mentioned, namely, one-half cash, and the balance in note as above. J. H. Barrett, Pres.” Immediately following the reference in the cross petition to the above contract, attached as an exhibit, there were the following averments: “(4) And this defendant alleges that thereupon, and in pursuance of said contract, he sank a well on said lots or premises, being the same identical premises upon which the buildings, machinery, and manufactory so as aforesaid erected by plaintiff stood and were situated; and that, in sinking said well, this defendant did work and furnish material between the 24th day of September, 1890, and the 13th day of January, 1891, inclusive, amounting in the aggregate, according to the terms of said contract, to the sum of $2,890; and that this defendant further performed all the terms and conditions of said contract on his part to be performed.” There was no other description of the manner in which the defendant had entitled himself to the foreclosure prayed, except that there were the usual averments of the filing of a verified account for a mechanic's lien as required by statute. The prayer of the cross petition was that an accounting might be had of the amount due from plaintiff to defendant; that such amount should be adjudged and decreed to be a valid and subsisting lien upon said premises; that defendant should have judgment against plaintiff for the sum of $2,890, with interest thereon from the 7th day of February, 1891 (the day on which was filed the claim of defendant for a lien); that said premises be sold, and the proceeds thereof applied to the payment of such judgment, interest, and costs, as should be rendered in behalf of the defendant; that, in case such proceeds should be insufficient to fully satisfy the amount found to be due and owing to the defendant, plaintiff might be adjudged to pay the deficiency; and that the defendant might have such other and different relief as in justice and in equity he should be entitled to.

The district court made findings, among others, as follows: “That on the 11th day of September, 1890, the plaintiff made, and the defendant accepted, the written proposition, dated September 11, 1890, and set out in the answer and cross petition of the defendant. That by the terms of said proposition, which was accepted as aforesaid, the plaintiff employed the defendant to sink a tubular well of seven-inch lap-welded iron pipe at the plaintiff's vinegar factory at Omaha, Nebraska, and to continue to sink the same until the defendant should get a water supply of two thousand gallons of water per hour, unless sooner stopped by the plaintiff. That said well, by the terms of said contract, was required to be cased from top to bottom with lap-welded iron pipe, seven inches in diameter on the inside. That said contract might be performed by the defendant either (1) by sinking a well, and casing the same with lap-welded iron pipe of the size aforesaid, until the defendant secured thereby a water supply of two thousand gallons of water per hour, or (2) until stopped by the plaintiff. That the defendant in good faith undertook the execution of said contract and proceeded in the performance of the same in a proper and workmanlike manner; and that, in so doing, the defendant sank a seven-inch tubular pipe a distance of one hundred and forty-five feet from the surface of the ground, at which point the defendant struck a hard limestone formation, sixty-five feet in thickness. That the defendant then proceeded through said rock formation, and extended it a number of feet, with a hole seven inches in diameter, and at the bottom of said hole proceeded further, with a hole six and then five inches in diameter, until he reached a point five hundred and twenty feet below the surface of the...