Peacock v. Gleason
| Decision Date | 24 May 1902 |
| Citation | 90 N.W. 610,117 Iowa 291 |
| Parties | WILLIAM PEACOCK, et al., Appellants, v. ELIZA GLEESEN |
| Court | Iowa Supreme Court |
Appeal from Plymouth District Court.--HON. GEO. W. WAKEFIELD, Judge.
ACTION for the reasonable value of services in drilling for a well. Plaintiffs appeal from judgment against them.
Affirmed.
Struble & Struble for appellants.
Zink & Roseberry for Appellee.
The plaintiffs, in their petition, alleged that about May 15 1899, they entered into an oral agreement with defendant by the terms of which they were to drill, case, and complete a tubular well, with pump included, at the price of $ 1.25 per foot and board for themselves and team. Unless a supply of water should be obtained which could not be taken out in 24 hours of continuous pumping, there was to be no compensation; but, in event the work should be stopped by defendant, she was to pay at the above rate for work already done. When a depth of 325 feet was reached the drill rod broke, and, after several days effort, plaintiffs were unable to extricate it, and they then offered to drill another hole for water without charge for the first, which defendant declined to allow, and thereupon this action was brought for the reasonable value of the labor performed. The answer was a general denial. Thereafter the plaintiffs filed an amendment to the effect that men, teams, and machinery did the work at the defendant's instance and request, and the value of such work and use of machinery was as previously stated. To this the defendant made no response by way of answer, and it is insisted that it should have been taken as true. The amendment did not state a complete cause of action, nor was it filed as a separate count. It merely added to the original petition the averment that the work was done under an implied contract, and, like it, based the claim of recovery on quantum meruit. Under these circumstances no more could be taken as admitted, because of the omission to controvert, than that not already denied by answer to the original petition. See Brown v. Ellis, 26 Iowa 85; McQuade v. Railway Co., 78 Iowa 690. The result was merely a concession that the contract sued on was implied instead of express. But any advantage that might have otherwise been derived therefrom was waived by the plaintiffs in proving, by their own testimony, that the work was done under an express agreement, in which defendant's agent who transacted the business concurred. Having presented the case on this theory, the plaintiffs are not in a situation to complain of the omission in the instructions to treat the averment of the amendment, repudiated by themselves, as having been admitted. See Fenner v. Crips, 109 Iowa 455, 80 N.W. 526.
II. James Peacock was asked whether he and his brother "had decided and were willing to start to drill a new hole, without pay, unless you found water." An objection thereto was properly sustained. Drilling another well without pay was not an issue in the case. It was for a well in accordance with the contract, and not a mere hole in the ground, as was the first until water should be found, for which compensation was to be made. It was the one abandoned and not that proposed, for the drilling of which plaintiffs could, under the contract, derive no benefit. Moreover, plaintiff's willingness to drill another well was proven by another witness and treated as an established fact in the instructions.
III. As the defendant was to board the men and feed the teams necessary in carrying on the undertaking, the plaintiffs were bound to prosecute the work with reasonable diligence and care, and, unless this was done, they were not entitled, in event of failing to find water in the first hole, to drill another under the contract. Thompson v. Brown, 106 Iowa 367, 76 N.W. 819. As bearing on this issue evidence was properly received...
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