Premco Drilling, Inc. v. Maillet Bros. Builders, Inc.

• Decision Date: 31 December 1965
• Docket Number: No. CV,CV
• Citation: 3 Conn.Cir.Ct. 519,218 A.2d 542
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: PREMCO DRILLING, INC. v. MAILLET BROS. BUILDERS, INC. 16-647-3040.

Page 542

218 A.2d 542

3 Conn.Cir.Ct. 519

PREMCO DRILLING, INC. v. MAILLET BROS. BUILDERS, INC.

No. CV 16-647-3040.

Circuit Court of Connecticut, Appellate Division.

Argued Oct. 25, 1965.

Decided Dec. 31, 1965.

George V. Steiner, Hartford, for appellant (defendant).

David C. Bagley, Hartford, for appellee (plaintiff).

DEARINGTON, Judge.

The plaintiff recovered a judgment on its complaint and also on the defendant's counterclaim. This appeal by the defendant is from the judgment on the counterclaim. The defendant assigns error in the refusal of the court to correct its finding by striking certain paragraphs and adding others.

The following facts were found: The plaintiff was engaged in the business of drilling wells, and the defendant was in the business of building houses. On or about November 21, 1963, the parties entered into an oral contract wherein the plaintiff agreed to drill a well for the defendant. Although the plaintiff urged the execution of a written contract, the defendant refused such overtures. After drilling 122 feet, the plaintiff struck water flowing at the rate of three gallons a minute, which the defendant stated was adequate. The plaintiff submitted its bill in the amount of $1032.50 and was paid in February, 1964. Thereafter on May 12, 1965, the defendant informed the plaintiff that the water was unfit for consumption and requested the plaintiff to return with its drilling equipment and drill farther. In compliance with that request, the plaintiff returned and drilled an additional 377 feet without discovering a satisfactory amount of water and, thereafter, stopped drilling and removed its equipment. The plaintiff submitted a bill based on the same rate as used in the previous drilling, but the defendant refused to pay the bill, claiming that the payment was contingent upon discovery of an adequate supply of pure water.

The court arrived at the following conclusions: (1) The plaintiff performed the work recited in the pleadings. (2) The defendant refused to enter into a written contract. (3) The plaintiff did not guarantee to find an adequate supply of water. (4) The plaintiff did not guarantee the purity of the water. (5) The defendant did not sustain its burden of proof on the counterclaim by a preponderance of the evidence. (6) Judgment should be rendered for the plaintiff in the amount of $1508 and costs.

The defendant in its counterclaim alleged that following the first drilling the water became contaminated because sand, gravel or other foreign substances appeared in it, rendering it unfit for household use. As a result of such contamination the defendant claims the plaintiff breached its agreement to furnish water fit for household consumption. By way of damages the defendant demands the return of the $1032.50 it paid the plaintiff for the first drilling.

The defendant sought unsuccessfully to strike the part of the finding relating to its contacting the plaintiff and informing it that the water was unfit for consumption and requesting further drilling, and the finding that the plaintiff in compliance with the request drilled an additional 377 feet. The defendant contends that these facts were found without evidence and in language of doubtful meaning. There was evidence that the parties met after the first drilling, at which time the defendant claimed that the water was unfit for consumption and agreed that the drilling be continued. The language used by the court was clear and unequivocal, and it committed no error in refusing the defendant's request in this respect. The defendant further sought to strike the part of the finding relating to the second drilling on the ground that it pertained to the plaintiff's complaint, whereas the appeal is limited to the defendant's counterclaim. But even if we assume that the defendant's contention is correct, the error, if any, was harmless, since the fact was immaterial to the determination of the issue raised under the counterclaim.

The defendant sought to add to the finding that the water became unfit for consumption as a result of the first drilling because sand appeared in it. The defendant claims that the sand resulted from improper well drilling and '(t)he plaintiff had agreed to prosecute the work under its contract in good workmanlike manner.' In this respect the defendant contends that well water can be contaminated in one of two ways: either at its source or after it enters the well. The latter source of contamination, the defendant maintains, may indicate a defectively constructed well. Such an alleged defect was the gravamen of the counterclaim. Having asserted the claim, the defendant had the burden of establishing it. Gager v. Carlson, 146 Conn. 288, 290, 150 A.2d 302; Wetherell v. Hollister, 73 Conn. 622, 626, 48 A. 826.

The defendant contends that facts relating to the presence of sand in the water should have been added to the finding, for they would have supported a conclusion of improper well drilling and hence a breach of contract. In the absence of an agreement, there is no implied warranty on the part of a driller as to the quality of water which might be obtained...