OPINION
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 foreclosure
by 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
11, 1890.
"JOSEPH
BURNS: Please sink a tubular well, seven-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 the completion of the work
we agree to settle for 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 completed 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 furnished 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 ground, at
which time the defendant determined to ream out and make
larger the hole where it would not receive a pipe seven
inches in diameter, and to carry the seven-inch pipe down the
distance of three hundred and eighty-five feet from the
surface of the ground with a view of extending the depth of
the well below said five hundred and twenty feet and until
the supply of water aforesaid was reached; that while the
defendant was proceeding with said work as aforesaid, and
before he secured the amount of water required to perform the
conditions of said contract, the plaintiff stopped the
defendant from work and compelled him to leave the premises
and to remove his working tools and materials therefrom, and
by reason thereof the defendant was unable to longer continue
said work, though the defendant was then willing and in good
faith offered to continue the same and to complete said well
from top to bottom cased with lap-welded iron pipe, seven
inches in diameter, inside measurement; that by the terms of
said contract, upon the performance of the same, the
defendant was entitled to receive from the plaintiff the
following amounts:
"For the first 250 feet, $ 5 per foot, a total of
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$ 1,250
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"For the second 250 feet, $ 6 per foot, a total of
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1,500
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"That is to say, a total for the 500 feet of
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$ 2,750
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"That
when the plaintiff stopped the defendant, said well was not
complete a distance of five hundred feet from the surface of
the ground, but that the work which had been done below the
one-hundred and forty-five feet from the ground was a part of
the whole work contracted for, and was properly done in order
to sink said well a distance of five hundred feet from the
ground with lap-welded iron pipe, seven inches in diameter
inside measurement, from top to bottom, and in
order to enlarge the said well and...
